Ceravolo v. Sunnyside Market , 168 A.D.2d 409 ( 1990 )

In an action, inter alia, to recover damages for personal injuries, the third-party defendant Borden, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated November 29, 1988, as denied its cross motion to dismiss the complaint for lack of prosecution.

Ordered that the order is affirmed insofar as appealed from, with costs.

The third-party defendant, Borden, Inc. (hereinafter Borden), asserts that, upon their motion to have the complaint in the main action restored to the Trial Calendar, the plaintiffs failed to make a sufficient showing of the merits of their claims and that the complaint should have been dismissed. We disagree. Upon an examination of the complaint and a review of the affidavit of merit submitted by the plaintiff Michael Ceravolo, we cannot conclude that there is no merit to the plaintiffs’ action under any of the theories set forth in the complaint. Accordingly, we find that the Supreme Court properly declined to dismiss the complaint pursuant to CPLR 3404 and properly restored the action to the Trial Calendar. Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.