| Rocha-Silva v St. John's Hosp. |
| 2010 NY Slip Op 01633 [70 AD3d 1025] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Christopher Rocha-Silva, Appellant, v St. John's Hospitalet al., Respondents. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and DeirdreE. Tracey of counsel), for respondent St. John's Hospital. Martin Clearwater & Bell LLP, New York, N.Y. (Ellen B. Fishman, John L.A. Lyddane, andOlimpio A. Russo of counsel), for respondent Solaima Soukkary.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Queens County(Rosengarten, J.), entered May 19, 2005, as denied his motion, in effect, to vacate the dismissalof the action pursuant to CPLR 3216.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a compliance conference order dated October 21, 1999, the Supreme Court directed theplaintiff to file a note of issue on or before April 21, 2000, and warned that the action would bedismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This orderhad the same effect as a 90-day notice pursuant to CPLR 3216 (see Shcherbina v QueensNassau Nursing Home, Inc., 66 AD3d 869 [2009]; Anjum v Karagoz, 48 AD3d 605[2008]). The plaintiff failed to comply with this order either by filing a timely note of issue or bymoving to extend the period for doing so, and the action was properly dismissed pursuant toCPLR 3216 (see Hoffman v Kessler, 28 AD3d 718 [2006]; Mahler v Torres, 25AD3d 669 [2006]).
A case dismissed pursuant to CPLR 3216 may be restored only if the plaintiff candemonstrate both a reasonable excuse for the default and a meritorious cause of action (seeMahler v Torres, 25 AD3d at 670; Giannoccoli v One Cent. Park W. Assoc., 15AD3d 348, 349 [2005]). Here, the plaintiff failed to make that showing. Accordingly, theSupreme Court providently exercised its discretion in denying the plaintiff's motion, in effect, tovacate the dismissal. Covello, J.P., Santucci, Miller and Eng, JJ., concur.
Motion by the respondent St. John's Hospital to dismiss an appeal from an order of theSupreme Court, Queens County, entered May 19, 2005, insofar as it is against it on the groundthat the appellant failed to file a proof of claim in Bankruptcy Court. By decision and order onmotion of this Court dated November 19, 2008, the motion was held in abeyance, and wasreferred to the Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the motion is denied. Covello, J.P., Santucci, Miller and Eng, JJ., concur.