| Leinas v Long Is. Jewish Med. Ctr. |
| 2010 NY Slip Op 03289 [72 AD3d 905] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Hristos Leinas, Appellant, v Long Island Jewish MedicalCenter, Respondent. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and ScottFusaro of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appealsfrom an order of the Supreme Court, Queens County (O'Donoghue, J.), entered January 27,2009, which denied his motion, in effect, to vacate the dismissal of the action pursuant to CPLR3404 and to restore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
This case was first marked off the trial calendar on June 18, 2001, because the plaintiff'scounsel of record was engaged in another trial. After the first restoration to the trial calendar, thecase was marked off again on January 5, 2004, due to the medical condition of the plaintiff'sexpert witness. After the second restoration, the case was marked off on June 11, 2007, becauseof a conflict between the plaintiff's trial attorney and the plaintiff's expert witness. On March 26,2008, the plaintiff moved a third time to restore the action to the trial calendar, but was not readyto proceed because his trial attorney was unable to obtain another expert witness; that motionultimately was withdrawn. Pursuant to CPLR 3404, the action was dismissed on June 11, 2008.On August 22, 2008, the plaintiff moved a fourth time, inter alia, to restore the action to the trialcalendar. In the order appealed from, the Supreme Court denied the motion.
A case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissedafter one year may be restored to the trial calendar provided that the plaintiff demonstrates theexistence of a meritorious cause of action, a reasonable excuse for the delay in prosecuting theaction, a lack of intent to abandon the action, and a lack of prejudice to the defendant (see Strancewilko v Martin, 50 AD3d671 [2008]; Williams vD'Angelo, 24 AD3d 538 [2005]; Basetti v Nour, 287 AD2d 126, 131 [2001]).Here, the plaintiff failed to demonstrate a reasonable excuse for his 14-month delay in obtainingeither a new expert witness or a new trial attorney (see Tate v Peninsula Hosp. Ctr., 255AD2d 503, 504 [1998]; Carter v City of New York, 231 AD2d 485, 486 [1996];Roland v Napolitano, 209 AD2d 501 [1994]; Panchon v Brooklyn Hosp., 179AD2d 742, 743 [1992]). Under the circumstances of this case, the plaintiff failed to rebut thepresumption of abandonment which attaches when a matter has been automatically dismissedpursuant to CPLR 3404 (see Krichmar v Queens Med. Imaging, P.C., 26 [*2]AD3d 417, 419 [2006]; Kalyuskin v Rudisel, 306 AD2d246, 247 [2003]; Tate v Peninsula Hosp. Ctr., 255 AD2d at 504). Furthermore, sincemore than 15 years have passed between the date the alleged malpractice was committed and thedate of the motion under review, the defendant would be prejudiced if the action was restored tothe trial calendar (see Bornstein vClearview Props., Inc., 68 AD3d 1033, 1035 [2009]; Krichmar v Queens Med.Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871 [2005]). Santucci, J.P.,Dickerson, Belen and Austin, JJ., concur.