| Garcia v North Shore Long Is. Jewish Forest Hills Hosp. |
| 2012 NY Slip Op 06010 [98 AD3d 644] |
| August 22, 2012 |
| Appellate Division, Second Department |
| Michael Garcia, Respondent, v North Shore Long IslandJewish Forest Hills Hospital et al., Appellants. |
—[*1] Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (Joseph D. Furlong of counsel), forappellant Michael S. Drew. Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter S. Gordon of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants North Shore LongIsland Jewish Forest Hills Hospital and Michael S. Drew separately appeal, as limited by theirrespective briefs, from so much of an order of the Supreme Court, Queens County (O'Donoghue,J.), entered December 5, 2011, as denied their respective motions pursuant to CPLR 3216 todismiss the complaint insofar as asserted against each of them for the plaintiff's failure toprosecute and granted that branch of the plaintiff's cross motion which was to enlarge the time toserve and file a note of issue.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with one bill of costs, the defendants' respective motions pursuant to CPLR 3216 todismiss the complaint insofar as asserted against each of them are granted, and that branch of theplaintiff's cross motion which was to enlarge the time to serve and file a note of issue is denied asacademic.
The plaintiff commenced this action against Forest Hills Hospital, sued herein as NorthShore Long Island Jewish Forest Hills Hospital (hereinafter the hospital) and Michael S. Drew byfiling a summons and complaint on November 9, 2009. The complaint alleged that the plaintiffsustained personal injuries as a result of certain medical care and treatment rendered to him bythe defendants from July 17, 2008, through August 28, 2008. Drew answered and serveddiscovery demands on December 30, 2009. The hospital answered and served discovery demandson December 22, 2009. On April 12, 2011, and April 26, 2011, respectively, Drew and thehospital served valid 90-day demands pursuant to CPLR 3216, directing the plaintiff to serve andfile a note of issue within 90 days of the service of the demands, or face dismissal of the action.
During the 90-day period immediately following the service of the 90-day demands, [*2]the plaintiff neither served and filed a note of issue nor sought toenlarge his time to serve and file a note of issue. After this 90-day period lapsed, Drew and thehospital separately moved to dismiss the complaint insofar as asserted against each of thempursuant to CPLR 3216, alleging the plaintiff failed to prosecute the action. The plaintiff opposedthe motions and cross-moved, inter alia, to enlarge the time to serve and file a note of issue. TheSupreme Court denied the defendants' respective motions and granted the plaintiff's crossmotion. The defendants appeal.
Upon receipt of the 90-day demands, the plaintiff was required to comply either by servingand filing a timely note of issue or by moving, before the default date, to vacate the demand or toenlarge the 90-day period pursuant to CPLR 2004 (see Saginor v Brook, 92 AD3d 860, 860 [2012]; Cope v Barakaat, 89 AD3d 670[2011]; Sanchez v Serje, 78 AD3d1155, 1156 [2010]). Having failed to pursue either of the foregoing options, the plaintiff wasobligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause ofaction to avoid the sanction of dismissal (see CPLR 3216 [e]; Umeze v Fidelis Care N.Y., 17 NY3d751 [2011]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]; Davies v Baranovich, 87 AD3d1049, 1049 [2011]).
Here, the plaintiff failed to offer a reasonable excuse to justify his delay in seeking anenlargement of time within which to comply with the 90-day demands, or his lengthy delays inprosecuting this action. The plaintiff's contention that the defendants engaged in dilatory conductin responding to discovery demands did not constitute a reasonable excuse for the plaintiff'sfailure to respond to the 90-day demands (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682, 684[2009]; McKinney v Corby, 295 AD2d 580 [2002]; Papadopoulas v R.B. SupplyCorp., 152 AD2d 552 [1989]). Moreover, the plaintiff failed to demonstrate the existence ofa potentially meritorious malpractice cause of action against either defendant (see Mosberg vElahi, 80 NY2d 941, 942 [1992]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876, 877 [2010]; Knowles v Schaeffer, 70 AD3d897, 898 [2010]; cf. Davis vCardiovascular Consultants of Long Is., P.C., 65 AD3d 1076, 1077 [2009]).
Accordingly, the defendants' respective motions pursuant to CPLR 3216 to dismiss thecomplaint insofar as asserted against each of them for the plaintiff's failure to prosecute shouldhave been granted, and that branch of the plaintiff's cross motion which was to enlarge the timeto serve and file a note of issue should thereupon have been denied as academic.
The plaintiff's remaining contentions are without merit. Balkin, J.P., Hall, Lott and Cohen,JJ., concur.