| Furrukh v Forest Hills Hosp. |
| 2013 NY Slip Op 03968 [107 AD3d 668] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Nawaz Furrukh et al., Respondents, v Forest HillsHospital, Appellant, et al., Defendants. |
—[*1] Bhatia & Associates PLLC, New York, N.Y. (Satish K. Bhatia of counsel), forrespondents.
In an action to recover damages for medical malpractice, etc., the defendant ForestHills Hospital appeals, as limited by its brief, from stated portions of an order of theSupreme Court, Queens County (McDonald, J.), entered November 8, 2012, which, interalia, denied that branch of its motion which was pursuant to CPLR 3216 to dismiss thecomplaint for failure to prosecute.
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, with costs, and that branch of the motion of the defendant ForestHills Hospital which was pursuant to CPLR 3216 to dismiss the complaint for failure toprosecute is granted.
Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note ofissue must be accompanied by a certificate of readiness, which must state that there areno outstanding requests for discovery and the case is ready for trial (see 22NYCRR 202.21 [a], [b]). While the filing of a note of issue within 90 days after serviceupon the plaintiff of a written demand to serve and file the note of issue precludes a courtfrom dismissing the action (see CPLR 3216 [c]; Baczkowski v CollinsConstr. Co., 89 NY2d 499, 503 [1997]), here, the plaintiffs' certificate of readinessstated, inter alia, that discovery proceedings now known to be necessary were notcompleted, that there were outstanding requests for discovery, and that the case was notready for trial. Since the certificate of readiness failed to materially comply with therequirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and thatbranch of the appellant's motion which was to vacate the note of issue was properlygranted (see 22 NYCRR 202.21 [b], [e]; Blackwell v Long Is. Coll.Hosp., 303 AD2d 615, 616 [2003]; Garofalo v Mercy Hosp., 271 AD2d 642[2000]).
Having received a 90-day demand pursuant to CPLR 3216, the plaintiffs wererequired to file a proper note of issue or move, before the default date, to vacate the90-day demand or to extend the 90-day period pursuant to CPLR 2004 (see Cope v Barakaat, 89 AD3d670, 671 [2011]; Gagnon vCampbell, 86 AD3d 623, 624 [2011]; Blackwell v Long Is. Coll. Hosp.,303 AD2d at 616; Spilky v TRW, Inc., 225 AD2d 539, 540 [1996]). Theplaintiffs failed to timely file a proper note of issue or make [*2]a motion in response to the 90-day demand. Thus, to avoiddismissal of the complaint, the plaintiffs were required to show a justifiable excuse forthe delay and a potentially meritorious cause of action (see CPLR 3216 [e]; Umeze v Fidelis Care N.Y., 17NY3d 751 [2011]; Baczkowski v Collins Constr. Co., 89 NY2d at 504;Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616; Garofalo v MercyHosp., 271 AD2d at 642-643). The plaintiffs failed to demonstrate a justifiableexcuse for their delay and default (see Bhatti v Empire Realty Assoc., Inc., 101 AD3d 1066,1067 [2012]; Stallone vRichard, 95 AD3d 875, 876 [2012]; Fenner v County of Nassau, 80 AD3d 555, 556 [2011]),and failed to submit an affidavit of merit from a medical expert sufficient to establish apotentially meritorious cause of action (see Mosberg v Elahi, 80 NY2d 941[1992]; Reed v Friedman, 117 AD2d 661 [1986]; Vernon v Nassau CountyMed. Ctr., 102 AD2d 852 [1984]). Accordingly, that branch of the appellant'smotion which was pursuant to CPLR 3216 to dismiss the complaint for failure toprosecute should have been granted.
In light of our determination, we need not reach the appellant's remaining contention.Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur. [Prior Case History: 2012NY Slip Op 32569(U).]