Opinion
May 15, 1990
Appeal from the Supreme Court, New York County (Robert E. White, J.).
The record reveals that plaintiff failed to establish entitlement to vacatur of the dismissal and restoration of the underlying wrongful death and medical malpractice action to the Trial Calendar pursuant to CPLR 3404 by demonstrating a meritorious cause of action, a reasonable excuse for the delay, lack of prejudice to the opposing party and plaintiff's intent not to abandon the action. (See, Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720, 721; Friedberg v. Bay Ridge Orthopedic Assocs., 122 A.D.2d 194; Sheehan v. Hollywood, 112 A.D.2d 211.)
In any event, plaintiff is bound by the stipulation of discontinuance, with prejudice, signed by former counsel, Goldsmith and Tabak, on plaintiff's behalf, since plaintiff failed to demonstrate that his prior counsel lacked apparent authority to discontinue the underlying action. (CPLR 2104; Hallock v. State of New York, 64 N.Y.2d 224; Klein v. Mount Sinai Hosp., 61 N.Y.2d 865.)
Concur — Murphy, P.J., Carro, Rosenberger, Asch and Rubin, JJ.