| Piszczatowski v Hill |
| 2012 NY Slip Op 01805 [93 AD3d 707] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Robin Piszczatowski, Respondent, v Edward E. Hill et al.,Appellants, et al., Defendants. |
—[*1] Lawrence H. Singer, New York, N.Y. (Susan J. Kerker of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants Edward Hill, doingbusiness as Edward E. Hill, M.D., P.C., Henry Reinhardt, and North Shore Long Island JewishHealth System, Inc., doing business as North Shore University Hospital at Glen Cove, appealfrom an order of the Supreme Court, Nassau County (Adams, J.), dated May 17, 2011, whichgranted the plaintiff's motion pursuant to CPLR 5015 (a) to vacate the dismissal of the complaintand to restore the action to the pre-note of issue calendar.
Ordered that the order is affirmed, with costs.
Following the dismissal of the complaint pursuant to CPLR 3216, the plaintiff movedpursuant to CPLR 5015 (a) to vacate the dismissal of the complaint and to restore the action tothe pre-note of issue calendar. The Supreme Court granted the plaintiff's motion.
To vacate the dismissal of the action, the plaintiff was required to demonstrate a reasonableexcuse for her failure to timely file a note of issue in response to a valid 90-day notice containedin a certification order issued by the Supreme Court, as well as a potentially meritorious cause ofaction (see CPLR 5015 [a] [1]; Baczkowski v Collins Constr. Co., 89 NY2d 499,503 [1997]; Serby v Long Is. JewishMed. Ctr., 34 AD3d 441 [2006]). The determination of a reasonable excuse lies withinthe Supreme Court's discretion (seeSantiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394 [2004]).
Under the particular circumstances of this case, the plaintiff demonstrated a reasonableexcuse for her failure to timely file a note of issue based on law office failure (see Di Simonev Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]; Atterberry v Serlin & Serlin, 85 AD3d949 [2011]; Lauri v Freeport UnionFree School Dist., 78 AD3d 1130 [2010]). Furthermore, there is no evidence in therecord of a pattern of persistent neglect and delay in prosecuting the action, or of any intent toabandon the action (see Atterberry v Serlin & Serlin, 85 AD3d at 950). Thus, the delay "'was not willful or with intent to abandon the action,' " but rather was the result of isolatedneglect on the part of the plaintiff's previous attorney (Di Simone v Good SamaritanHosp., 100 NY2d at 634, quoting Carte v Segall, 134 AD2d 397, 398 [1987]). Inaddition, the plaintiff's submissions were sufficient to [*2]demonstrate that she has a potentially meritorious medicalmalpractice cause of action (see Di Simone v Good Samaritan Hosp., 100 NY2d at 634).
Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff'smotion pursuant to CPLR 5015 (a) to vacate the dismissal of the complaint pursuant to CPLR3216 and to restore the action to the pre-note of issue calendar. Balkin, J.P., Belen, Hall andMiller, JJ., concur.