Schmitt v Jeyalingam

2010 NY Slip Op 01949 [71 AD3d 757]

March 9, 2010

Appellate Division, Second Department

As corrected through Wednesday, April 28, 2010

Tracy Schmitt et al., Appellants, v Nagalingam Jeyalingamet al., Respondents, et al., Defendant.

—[*1]Anthony R. Tirone, White Plains, N.Y. (Cynthia Dolan of counsel), for appellants.

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), forrespondents.

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiffs appeal from an order of the Supreme Court, Orange County (Owen, J.), dated April13, 2009, which denied their motion to restore the action to the trial calendar and to vacate anorder of the same court dated May 30, 2008, granting the defendants' motion to dismiss theaction upon their failure to proceed with the trial.

Ordered that the order dated April 13, 2009 is affirmed, with costs.

Upon the plaintiffs' failure to proceed on the scheduled trial date, the Supreme Court grantedthe defendants' motion to dismiss the action. To vacate the order dismissing the action and torestore the action to the trial calendar, the plaintiffs were required to demonstrate both areasonable excuse for their default and a meritorious cause of action (see CPLR 5015 [a][1]; 22 NYCRR 202.27; Santiago vSantana, 54 AD3d 929, 930 [2008]; Frangione v Daniels, 44 AD3d 708 [2007]; Brooks v Haidt, 30 AD3d 365[2006]; Kandel v Hoffman, 309 AD2d 904, 905 [2003]; cf. CPLR 3404). Theplaintiffs failed to demonstrate a reasonable excuse for their repeated failure to proceed with thetrial and to comply with orders directing them to serve post note of issue expert witnessdisclosure (see 22 NYCRR 202.21 [d]) for more than two years (see Santiago vSantana, 54 AD3d at 930; Kouziosv Dery, 57 AD3d 949, 950 [2008]; Antoine v Bee, 26 AD3d 306 [2006]; Kandel v Hoffman,309 AD2d 904, 905 [2003]). Accordingly, the Supreme Court providently exercised itsdiscretion in denying the plaintiffs' motion to restore the action to the trial calendar and to vacatethe order dismissing the action. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.