Shirley Williams v Joseph D'Angelo

Williams v D'Angelo 2005 NYSlipOp 09521 December 12, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Shirley Williams et al., Appellants,
v
Joseph D'Angelo et al., Respondents.

—[*1]

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), dated August 13, 2004, which denied their motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the plaintiff demonstrates 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 defendant (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]; Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Cobos v Phieffer, 8 AD3d 424 [2004]). The plaintiffs failed to demonstrate, through an expert affidavit, that they have a meritorious cause of action (see Yousian v New York Med. Ctr. Hosp. of Queens, 277 AD2d 449 [2000]; Iazzetta v Vicenzi, 243 AD2d 540 [1997]; Miller v City of New York, 242 AD2d 370 [1997]). They also failed to satisfy any of the other three components of the test. Accordingly, the plaintiffs' motion was properly denied. Schmidt, J.P., S. Miller, Mastro, Spolzino and Lunn, JJ., concur.