Opinion
2012-02-21
Michael AGLI, appellant, v. James T. O'CONNOR, et al., respondents.
Peña & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellant. Shaub Ahmuty Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Lauren J. Daniels of counsel), for respondents.
Peña & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellant. Shaub Ahmuty Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Lauren J. Daniels of counsel), for respondents.
RANDALL T. ENG, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered February 17, 2011, which granted the defendants' motion to dismiss the action pursuant to CPLR 3404 and denied his cross motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.
ORDERED that the order is affirmed, with costs.
A case in the Supreme Court marked off or struck from the trial calendar and not restored within one year thereafter shall be deemed abandoned and shall be dismissed for neglect to prosecute ( see CPLR 3404). Here, it is undisputed that the case was marked off the trial calendar and not restored within one year thereafter ( id.). A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate the existence of 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 ( see Vidal v. Ricciardi, 81 A.D.3d 635, 915 N.Y.S.2d 630; Nasuro v. PI Assoc., LLC, 78 A.D.3d 1030, 1031, 912 N.Y.S.2d 86; Mooney v. City of New York, 78 A.D.3d 795, 796, 911 N.Y.S.2d 395). All four components of the test must be satisfied before the dismissal can be properly vacated and the action restored ( see Vidal v. Ricciardi, 81 A.D.3d 635, 915 N.Y.S.2d 630; Nasuro v. PI Assoc., LLC, 78 A.D.3d at 1031, 912 N.Y.S.2d 86; Vaream v. Corines, 78 A.D.3d 933, 911 N.Y.S.2d 424).
Here, the plaintiff failed to meet this burden. The plaintiff's unsubstantiated contentions regarding outstanding discovery did not constitute a reasonable excuse for the 18–month delay in prosecuting the action ( see Vidal v. Ricciardi, 81 A.D.3d 635, 915 N.Y.S.2d 630; M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C., 39 A.D.3d 819, 820, 834 N.Y.S.2d 324; Jeffs v. Janessa, Inc., 226 A.D.2d 504, 505, 641 N.Y.S.2d 75). Furthermore, the plaintiff engaged only in minimal activity regarding the case during the 18 months that elapsed from the date it was marked off the trial calendar to the date of his motion to restore. This limited activity was insufficient to rebut the presumption of abandonment that attached after the case was automatically dismissed pursuant to CPLR 3404 ( SEE OKUN V. TANNERS, 11 N.Y.3D 762, 763, 867 n.y.S.2d 25, 896 n.e.2d 660; Mooney v. City of New York, 78 A.D.3d at 796, 911 N.Y.S.2d 395; Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc., 77 A.D.3d 885, 886, 910 N.Y.S.2d 109; Castillo v. City of New York, 6 A.D.3d 568, 569, 775 N.Y.S.2d 82). Moreover, since almost seven years elapsed between the date this action accrued and the date of the plaintiff's motion to restore, the defendants would be prejudiced if the action were restored to the trial calendar ( see Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc., 77 A.D.3d at 886, 910 N.Y.S.2d 109; Kalyuskin v. Rudisel, 306 A.D.2d 246, 247, 760 N.Y.S.2d 358; McCarthy v. Bagner, 271 A.D.2d 509, 510, 710 N.Y.S.2d 249). Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the action pursuant to CPLR 3404 and properly denied the plaintiff's cross motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.