Dramer v. Board of Education , 521 N.Y.S.2d 400 ( 1987 )

— In an action, inter alia, to recover damages for an alleged violation of the Education Law, the defendants appeal from an order of the Supreme Court, Nassau County (Oppido, J.), dated November 12, 1986, which granted the plaintiffs motion pursuant to CPLR 5015 and 3404 to vacate an automatic dismissal of the action and to restore the action to the calendar.

Ordered that the order is affirmed, with costs.

We find that the Supreme Court properly exercised its discretion in restoring this action to the calendar under the circumstances herein (see, CPLR 3404; McLaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, 1987 Supp Pamph, CPLR 3404, at 41; Boyle v Krebs & Schulz Motors, 18 AD2d 1010). The defendants conceded, and a review of the record confirms, that the plaintiff set forth a meritorious cause of action and established a reasonable excuse for the delay (see, CPLR 2005) and an intent not to abandon this matter (cf., Ornstein v Kentucky Fried Chicken, 121 AD2d 610). There has been no prejudice to the defendants. Therefore, the plaintiffs motion was properly granted. Brown, J. P., Eiber, Kunzeman and Spatt, JJ., concur.