Gounaris v Bloom

[*1] Gounaris v Bloom 2007 NY Slip Op 51845(U) [17 Misc 3d 127(A)] Decided on October 2, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 2, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
570089/07.

Aspasia Gounaris and Anthony Gounaris, Plaintiffs-Respondents,

against

Michael Bloom, D.D.S., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered March 13, 2006, which granted plaintiffs' motion to restore the action to the calendar.

Per Curiam.

Order (Manuel J. Mendez, J.), entered March 13, 2006, reversed, without costs, motion denied and complaint dismissed.

Courts have discretion to grant a restoration motion brought more than one year after the case is marked off the calendar provided the movant demonstrates a meritorious claim or defense, a reasonable excuse for the delay, a lack of intent to abandon the proceeding and a lack of prejudice to the opposing party (see Kaufman v Bauer, 36 AD3d 481, 482 [2006]). Here, plaintiffs' failure to present an affidavit of merit by a dental expert required the denial of the motion to restore (see Barton v Executive Health Examiners, 277 AD2d 27 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 02, 2007