Bray v. Thor Steel & Welding Ltd.
Cases that cite this one
1 later published case cites this decision.
- Bornstein v. Clearview Properties, Inc. (Appellate Division of the Supreme Court of New York 2009)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs motion to vacate the dismissal of the action pursuant to CPLR 3404. To prevail on the motion, plaintiff was required to demonstrate a meritorious cause of action, a reasonable excuse for his delay, his lack of intent to abandon the action and the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Tate v Peninsula Hosp. Ctr., 255 AD2d 503, 503-504; Krantz v Scholtz, 201 AD2d 784, 785, lv dismissed 83 NY2d 902; Knight v City of New York, 193 AD2d 720, 721, lv dismissed 83 NY2d 800). All four elements must be established for the order of dismissal to be vacated (see, Knight v City of New York, supra, at 721; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611), and plaintiff failed to establish three of them. The unsubstantiated assertions in the affirmation of plaintiff’s attorney are insufficient to demonstrate either a meritorious cause of action (see, Maida v Rite Aid Corp., 210 AD2d 589, 590-591; Matter of Kharrubi v Board of Educ., 133 AD2d 457, 458) or the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Robinson v New York City Tr. Auth., 203 AD2d 351). Further, the intermittent periods of disability claimed by plaintiffs attorney do not constitute a reasonable excuse for the delay because there is “no
Case-law data current through September 30, 2026. Source: CourtListener bulk data.