| Davis v Cardiovascular Consultants of Long Is., P.C. |
| 2009 NY Slip Op 06501 [65 AD3d 1076] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Gary Davis, Respondent, v Cardiovascular Consultants ofLong Island, P.C., et al., Appellants, et al., Defendants. |
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Jeffrey S. Lisabeth, Mineola, N.Y., for respondent.
In an action to recover damages for medical malpractice, etc., the defendants CardiovascularConsultants of Long Island, P.C., Alan B. Cohen, Bruce M. Decter, and David A. Hess appeal,as limited by their brief, from so much of an amended order of the Supreme Court, NassauCounty (Mahon, J.), entered November 12, 2008, as granted that branch of the plaintiff's motionwhich was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216.
Ordered that the amended order is reversed insofar as appealed from, on the law and in theexercise of discretion, with costs, and that branch of the plaintiff's motion which was, in effect,to vacate the dismissal of the action pursuant to CPLR 3216 is denied.
An order entered November 7, 2007, which warned the plaintiff that the failure to serve andfile a note of issue would result in dismissal of the action, had the same effect as a valid 90-daynotice pursuant to CPLR 3216 (seeHuger v Cushman & Wakefield, Inc., 58 AD3d 682 [2009]; Benitez v Mutual of Am. Life Ins. Co.,24 AD3d 708 [2005]; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348 [2005]; Betty v City of New York, 12 AD3d472 [2004]). Having received a 90-day notice, the plaintiff was required either to file atimely note of issue or to move, before the default date, for an extension of time pursuant toCPLR 2004 (see Benitez v Mutual ofAm. Life Ins. Co., 24 AD3d 708 [2005]; Bokhari v Home Depot U.S.A., 4 AD3d 381 [2004]; McKinneyv Corby, 295 AD2d 580, 581 [2002]). The plaintiff did neither, and the action wassubsequently dismissed pursuant to CPLR 3216.
To vacate the dismissal of an action pursuant to CPLR 3216, a plaintiff must demonstrateboth a reasonable excuse for the default in complying with the 90-day notice and a meritoriouscause of action (see CPLR 3216 [e]; Felix v County of Nassau, 52 AD3d 653 [2008]; Petersen v Lysaght, Lysaght & Kramer,P.C., 47 AD3d 783 [2008]). Here, the plaintiff failed to submit any expert medicalopinion evidence to demonstrate the merit of his medical malpractice action (see Mosberg vElahi, 80 NY2d 941, 942 [1992]; Fiore v Galang, 64 NY2d 999, 1000-1001 [1985];Salch v Paratore, 60 NY2d 851, 852 [1983]; Picot v City of New York, 50 AD3d 757 [2008]; Burke vKlein, 269 AD2d 348, 348-349 [2000]; Abelard [*2]vInterfaith Med. Ctr., 202 AD2d 615, 616 [1994]; Feinblum v Dybner, 197 AD2d 560[1993]). Accordingly, that branch of his motion which was, in effect, to vacate the dismissal ofthe action pursuant to CPLR 3216 should have been denied. Skelos, J.P., Florio, Balkin, Belenand Austin, JJ., concur.