AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Attorney(S)
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Attorney(S)

FURNITURE VILLAGE, INC., APPELLANT, v. DAVID SCHOENBERGER, ETC., ET AL., DEFENDANTS THIRD-PARTY PLAINTIFFS-RESPONDENTS; GREENFIELD FUEL OIL COMPANY, ET AL., THIRD-PARTY DEFENDANTS-RESPONDENTS.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

It is well settled that a party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the absence of prejudice to the nonmoving party (see, Lopez v. Imperial Delivery Serv., A.D.2d [2d Dept., May 14, 2001]); Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341; Kopilas v. Peterson, 206 A.D.2d 460).

Here, the Supreme Court properly determined that the defendants and the third-party defendants would be prejudiced if they were forced to defend an action based on events that occurred in 1982 and 1983 (cf., Jeffs v. Janessa, Inc., 226 A.D.2d 504). There was no activity in the case during the more than three years following its dismissal pursuant to CPLR 3404 and the plaintiff's initial motion to restore, evincing an intent to abandon the action (see, Knight v. City of New York, 193 A.D.2d 720). Moreover, the plaintiff failed to demonstrate a reasonable excuse for the delay in moving to restore the case to the trial calendar.

The plaintiff's remaining contention is without merit.

BRACKEN, P.J., ALTMAN, GOLDSTEIN and McGINITY, JJ., concur.

Use AI to get other relevant cases.

Comments

FURNITURE VILLAGE, INC. v. SCHOENBERGER
(May 29, 2001)