Practice point: A case in the Supreme Court marked off or struck from the trial calendar and not restored within one year thereafter is deemed abandoned and will be dismissed for neglect to prosecute, pursuant to CPLR 3404.
Student note: A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially 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 All four components of the test must be satisfied before the dismissal will be vacated and the action restored.
Case: Agli v. O’Connor, NY Slip Op 01417 (2d Dept. 2012).
Tomorrow’s issue: Usury as an affirmative defense.
