Laurie Ferrara Atl. Med. v Kemper Ins. Co. (2005 NY Slip Op 52199(U))

[*1]

Laurie Ferrara Atl. Med. v Kemper Ins. Co.

2005 NY Slip Op 52199(U) [10 Misc 3d 139(A)]

Decided on December 30, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-844 S C.

LAURIE FERRARA ATLANTIC MEDICAL, ANESTHESIA ASSOCIATES, P.C., SOUTH NASSAU COMMUNITY HOSPITAL, SOUTH NASSAU PATHOLOGY and OPEN MRI AT CENTEREACH, Appellants,

against

KEMPER INSURANCE COMPANY, Respondent.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated March 28, 2005. The order granted defendant's motion to reargue and, upon reargument, dismissed the action and denied plaintiffs' cross motion to vacate their default and restore the case to the calendar.

Order unanimously affirmed without costs.

It is uncontroverted that plaintiffs cross-moved to vacate their default and restore the case to the calendar in January 2005, which was more than a year after the case
had been stricken from the calendar in August 2003. Plaintiffs, therefore, were required to demonstrate (1) a reasonable excuse for their 17-month delay in moving to restore the case to the calendar, (2) meritorious claims, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]; Hercules v City of New York, 5 Misc 3d 129[A], 2004 NY Slip Op 51282[U] [App Term, 2d & 11th Jud Dists]), which they failed to do. Consequently, we find that the court below acted properly in granting defendant's motion to dismiss and denying plaintiffs' cross motion. [*2]
Decision Date: December 30, 2005