In recent weeks, the Appellate Division, Second Department, has issued decisions in a wide range of Long Island cases in which it reviewed the standards for a host of important trial level motions. Although certainly of interest to appellate lawyers, these rulings also may be of note to litigators seeking to restore a case to trial, renew or reargue a prior motion or even file an amended complaint.
For example, Borrelli v. Maye[1]� was an appeal of a decision by Suffolk County Supreme Court Justice Robert W. Doyle denying the plaintiff’s motion to restore a personal injury action to the trial calendar. The Second Department explained that a plaintiff seeking to restore a case to the trial calendar more than one year after it has been stricken, and after it has been dismissed pursuant to CPLR 3404, must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant. The Second Department found that the plaintiff had failed to establish all of these elements, and it concluded that Justice Doyle had providently exercised his discretion in denying the motion.
