| Jedraszak v County of Westchester |
| 2013 NY Slip Op 00458 [102 AD3d 924] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Marie Jedraszak et al., Appellants, v County ofWestchester et al., Respondents. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, White Plains, N.Y. (Claudine L. Weis ofcounsel), for respondents County of Westchester and Westchester County MedicalCenter. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forrespondent Pradip K. Mishra.
In an action to recover damages for medical malpractice, etc., the plaintiffs appealfrom an order of the Supreme Court, Westchester County (Giacomo, J.), entered May 7,2012, which granted the motion of the defendant Pradip K. Mishra, and the separatemotion of the defendants County of Westchester and Westchester County Medical Centerpursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of themfor failure to prosecute.
Ordered that the order is affirmed, with one bill of costs payable to the defendantsappearing separately and filing separate briefs.
Having received valid 90-day notices from the defendants, the plaintiffs wererequired either to serve and file a timely note of issue, or move before the default date toeither vacate the demands or to extend the 90-day period pursuant to CPLR 2004 (see Garcia v North Shore Long Is.Jewish Forest Hills Hosp., 98 AD3d 644, 645 [2012]; Saginor v Brook, 92 AD3d860, 860 [2012]; Cope vBarakaat, 89 AD3d 670 [2011]; Sanchez v Serje, 78 AD3d 1155, 1156 [2010]; Picot v City of New York, 50AD3d 757, 758 [2008]). The plaintiffs failed to respond to either of the 90-daynotices.
In response to the defendants' separate motions to dismiss the complaint for failure toprosecute, the plaintiffs, in order to avoid dismissal, were required to demonstrate thatthere was a justifiable excuse for their delay and that they had a potentially meritoriouscause of action (see CPLR 3216 [e]; Umeze v Fidelis Care N.Y., 17 NY3d 751, 751 [2011];Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]; Colon v Papatolis, 95 AD3d1160, 1160 [2012]; Daviesv Baranovich, 87 AD3d 1049, 1049 [2011]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876, 876[2010]; Picot v City of New York, 50 AD3d at 758), but failed to do so. Theplaintiffs' excuse for their failure to comply with the 90-day notices was inadequate, aswas their excuse for their inordinate delay in the prosecution of this [*2]action, which was commenced in 1998 (see Baczkowskiv Collins Constr. Co., 89 NY2d at 503-504; Garcia v North Shore Long Is.Jewish Forest Hills Hosp., 98 AD3d at 645). The plaintiffs' contention that there wasa stay of all proceedings in this action in effect from 2002 until August 2011, subsequentto the defendants' service of their 90-day notices and motions to dismiss the complaint,was not supported by the record. Moreover, the plaintiffs failed to submit evidentiaryproof from a medical expert to demonstrate a potentially meritorious cause of action torecover damages for medical malpractice (see Mosberg v Elahi, 80 NY2d 941,942 [1992]; Dominguez v Jamaica Med. Ctr., 72 AD3d at 877; see also Sicoli v Sasson, 76AD3d 1002, 1003-1004 [2010]).
Accordingly, the Supreme Court properly granted the defendants' motions pursuantto CPLR 3216 to dismiss the complaint insofar as asserted against each of them.Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.