| King v Dobriner |
| 2013 NY Slip Op 03817 [106 AD3d 1053] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Muriel King, Respondent, v Mark W. Dobriner etal., Appellants, et al., Defendant. |
—[*1] Riconda & Garnett, LLP, Valley Stream, N.Y. (John Riconda of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the defendants MarkW. Dobriner and Colon & Rectal Surgical Associates of L.I., P.C., appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.),entered October 31, 2011, as granted those branches of the plaintiff's motion which wereto vacate the dismissal of the action insofar as asserted against them pursuant to CPLR3216 and to extend her time to file a note of issue.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the plaintiff's motion which were to vacate the dismissal of theaction insofar as asserted against the defendants Mark W. Dobriner and Colon & RectalSurgical Associates of L.I., P.C., pursuant to CPLR 3216 and to extend her time to file anote of issue are denied.
A certification order of the Supreme Court dated March 31, 2011, directing theplaintiff to file a note of issue within 90 days, and warning that the complaint would bedeemed dismissed without further order of the Supreme Court if the plaintiff failed tocomply with that directive, had the same effect as a valid 90-day notice pursuant toCPLR 3216 (see Stallone vRichard, 95 AD3d 875, 876 [2012]; Fenner v County of Nassau, 80 AD3d 555 [2011]). Havingreceived a 90-day notice, the plaintiff was required either to serve and file a timely noteof issue or to move pursuant to CPLR 2004, prior to the default date, to extend the timewithin which to serve and file a note of issue (see Stallone v Richard, 95 AD3d at876; Fenner v County of Nassau, 80 AD3d at 555). The plaintiff did neither.Thus, to avoid dismissal, the plaintiff was required to demonstrate a justifiable excuse forher failure to comply with the certification order and the existence of a potentiallymeritorious cause of action (see CPLR 3216 [e]; Stallone v Richard, 95AD3d at 876).
The assertion of the plaintiff's counsel that he incorrectly calendared the date onwhich the note of issue was due amounted to a reasonable excuse of law office failure(see Simpson v Tommy HilfigerU.S.A., Inc., 48 AD3d 389, 391 [2008]; Hoffman v Kessler, 28 AD3d 718 [2006]). However, theplaintiff failed to provide in her initial moving papers an affidavit of merit from amedical expert [*2]competent to attest to the meritoriousnature of the cause of action alleging medical malpractice (see Mosberg v Elahi,80 NY2d 941 [1992]; Jedraszakv County of Westchester, 102 AD3d 924, 925 [2013]; Burke v Klein,269 AD2d 348 [2000]; Nepomniaschi v Goldstein, 182 AD2d 743 [1992]). Itwas improper for the plaintiff to submit an affidavit of merit from a medical expert forthe first time in her reply papers (see Siculan v Koukos, 74 AD3d 946, 947 [2010]; cf. Hoffman v Kessler, 28AD3d 718, 719 [2006]). Contrary to the Supreme Court's conclusion, "the pasthistory of this case" does not demonstrate that the plaintiff has a potentially meritoriouscause of action alleging medical malpractice. The prior summary judgment motion of thedefendants Mark W. Dobriner and Colon & Rectal Surgical Associates of L.I., P.C.(hereinafter together the Dobriner defendants), was based on the contention that themedical malpractice cause of action was time-barred, and did not address the merits ofthe cause of action (see King vDobriner, 94 AD3d 821 [2012]).
Accordingly, those branches of the plaintiff's motion which were to vacate thedismissal of the action insofar as asserted against the Dobriner defendants pursuant toCPLR 3216 and to extend her time to file a note of issue should have been denied.Dillon, J.P., Dickerson, Chambers and Miller, JJ., concur.