Opinion
November 16, 1993
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
This medical malpractice action was originally scheduled for trial on October 15, 1991. Plaintiffs moved for an adjournment due to the unavailability of their expert. In response to action and ruled that plaintiffs could move to vacate the dismissal within one year provided that the application was supported by an affidavit of merit by a physician. Plaintiffs moved by Order to Show Cause signed on October 19, 1992 to vacate the default. That order was served on the defendants on that date and made returnable on October 28, 1992. Plaintiffs supported the application to restore the matter with the affidavit of a board certified orthopedic surgeon dated September 21, 1992. Plaintiffs maintain and it is not disputed, that the Order to Show Cause was submitted to the ex parte motion clerk on October 15, 1992.
We conclude, under the particular circumstances of this case, that it was an improvident exercise of discretion to deny the plaintiffs' motion to vacate the dismissal of the action. It has been said that "[d]espite the seemingly definitive language of CPLR 3404, dismissal for failure to restore an action within one year after it has been marked off the calendar is neither automatic nor self-executing" (Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720, 721, appeal dismissed 69 N.Y.2d 874). Given the lapse of time from the date that plaintiffs' counsel obtained the supporting affidavit and the date of the application to vacate the dismissal, we deem it appropriate to impose a sanction of $500 payable to defendant's counsel (see, Rosado v New York City Hous. Auth., 183 A.D.2d 640, 642).
Concur — Rosenberger, J.P., Ross, Asch and Rubin, JJ.