Patterson v St. Luke's-Roosevelt Hosp.

Patterson v St. Luke's-Roosevelt Hosp. 2007 NY Slip Op 08288 [45 AD3d 273] November 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Laren Patterson, Appellant,
v
St. Luke's-Roosevelt Hospital et al., Respondents, et al., Defendants.

—[*1] McAvoy & Banta, New York City (Eugene M. Banta of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner of counsel), for respondents.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 6, 2006, which, in an action for medical malpractice, granted defendants' motion to dismiss the action for failure to prosecute, unanimously affirmed, without costs.

Plaintiff did not respond to defendants' disclosure demands served simultaneously with or shortly after their answer, and had otherwise been utterly inactive when, two years later, defendants served a CPLR 3216 notice. Service of the notice required that plaintiff either file a note of issue within 90 days; or move, within 90 days, to vacate the notice or extend the 90-day period; or demonstrate, in opposition to a motion to dismiss, merit to the action and an excuse for the delay sufficient to convince the court to forgive the failure to prosecute as a matter of discretion (CPLR 3216 [e]; see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-505 [1997]). Plaintiff chose the last course, submitting, in opposition to a motion to dismiss, materials responsive to discovery demands, but offering no excuse whatsoever for the inactivity and, with respect to the merits, merely promising to produce an expert's affidavit within 60 days of the motion's return day. We reject plaintiff's argument that under the circumstances, the [*2]court's dismissal should have been conditioned on his providing the promised expert's affidavit within 60 days. Concur—Tom, J.P., Saxe, Sullivan, Gonzalez and Sweeny, JJ.