Sergio Cobos v W. A. Phieffer

Cobos v Phieffer 2004 NY Slip Op 05185 [8 AD3d 424] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Sergio Cobos, Jr., et al., Appellants,
v
W.A. Phieffer, Jr., et al., Respondents.

—[*1]In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Huttner, J.), dated September 4, 2003, which denied their motion to restore the action to the trial calendar.

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

"A party seeking to restore to the trial calendar an action which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party" (McCarthy v Bagner, 271 AD2d 509 [2000]). The plaintiffs did not demonstrate a reasonable excuse for their failure to appear at a trial conference on June 24, 2002, and thus failed to satisfy the standard. Accordingly, the Supreme Court properly exercised its discretion in denying the motion to restore. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.