Hercules v City of New York

[*1] Hercules v City of New York 2004 NY Slip Op 51282(U) Decided on October 27, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
2003-1218 K C

MATTHEW HERCULES, Appellant, THE

against

CITY OF NEW YORK, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered on June 18, 2003, which denied his motion to restore the case to the calendar.

Order unanimously affirmed without costs.

Since plaintiff's motion was made more than one year after the action was stricken from the calendar, plaintiff was required to demonstrate a reasonable excuse for the delay of 14 months in moving to restore the action to the calendar, a meritorious claim, a lack of intent to abandon the action and a lack of prejudice to the defendant (see LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [2001]; Basetti v Nour, 287 AD2d 126 [2001]). Plaintiff failed to provide a reasonable excuse for the delay in moving to restore the action to the calendar. Moreover, plaintiff's motion was not supported by an affidavit of merit. Plaintiff submitted the transcript from a hearing held pursuant to General Municipal Law § 50-h which was not notarized and was patently insufficient to establish a meritorious cause of action. Additionally, plaintiff failed to establish a lack of prejudice to the defendant and a lack of intent to abandon the action. [*2]
Decision Date: October 27, 2004