Lee v Cohen

[*1] Lee v Cohen 2014 NY Slip Op 51029(U) Decided on July 1, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.


Peter Lee, DANIEL LEE and MOON LEE, Appellants,

against

Albert Cohen, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered November 22, 2011. The order, insofar as appealed from, denied plaintiffs' motion to restore the action to the trial calendar and granted defendant's cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Since plaintiffs moved to restore the action to the trial calendar more than one year after it had been marked off the trial calendar, they were required to demonstrate a reasonable excuse for the delay in moving to restore, a meritorious cause of action, a lack of intention to abandon the action, and a lack of prejudice to defendant (see Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Ambrose v Rudzewick, 19 Misc 3d 143[A], 2008 NY Slip Op 51100[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs, 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). Plaintiffs failed to satisfy their burden because, among other things, plaintiffs' counsel's conclusory claim regarding his inability to communicate with his clients did not constitute a reasonable excuse for his failure to move to restore the action within one year (see Montague v Rivera, 50 AD3d 656 [2008] [a conclusory explanation devoid of factual details does not establish a reasonable excuse]; Juarbe v City of New York, 303 AD2d 462 [2003]).

As plaintiffs raise no independent argument challenging the granting of defendant's cross motion to dismiss the complaint (cf. Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007] [section 208.14 of the Uniform Rules for the New York City Civil Court (22 NYCRR) does not authorize the Civil Court to dismiss a case as abandoned]), we leave the dismissal undisturbed.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: July 01, 2014