Goldstein v Silverstein

Goldstein v Silverstein 2011 NY Slip Op 07921 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Tom, J.P., Andrias, Freedman, Richter, JJ.
5973 15576/00

[*1]Samuel N. Goldstein, etc., et al., Plaintiffs-Appellants,

v

Wendy B. Silverstein, M.D., Defendant-Respondent.




Law Offices of Daniel A. Thomas, P.C., New York (Daniel A.
Thomas of counsel), for appellants.
Dwyer & Taglia, New York (Peter R. Taglia of counsel), for
respondent.

Appeal from order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 1, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to vacate the dismissal of this medical malpractice action and restore the action to the trial calendar, deemed appeal from judgment, same court and Justice, entered September 13, 2010, dismissing the complaint (CPLR 5501[c]), and, so considered, the judgment unanimously affirmed, without costs.

Plaintiff improperly argues for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status (see Nieman v Sears, Roebuck & Co., 4 AD3d 255, 255 [2004]). Plaintiff neither
made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that he had a meritorious cause of action.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK