Kumah v Robinson

[*1] Kumah v Robinson 2007 NY Slip Op 50139(U) [14 Misc 3d 133(A)] Decided on January 30, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ
570460/06.

Issac Kumah, Plaintiff-Respondent, .

against

Bruce G. Robinson, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County, (Larry S. Schachner, J.), entered January 19, 2006, which denied his motion to dismiss the complaint for failure to prosecute and/or to vacate the notice of trial.

PER CURIAM:
Order (Larry S. Schachner, J.), entered January 19, 2006, modified to grant defendant's motion to vacate the notice of trial and remand the matter for further proceedings in accordance with this decision; as so modified, affirmed, without costs.

The motion court properly denied defendant's motion to dismiss the action pursuant to CPLR 3216(e) upon plaintiff's showing of a justifiable excuse for the one-day delay in filing the notice of trial and a potentially meritorious cause of action (see Baczkowski v. D.A. Collins Const. Co., Inc., 89 NY2d 499 [1997]). However, no independent medical examination of plaintiff having been performed yet, the notice of trial is vacated (see Wise v. Blue, 289 AD2d 131 [2001]). Such medical examinations must be conducted within 45 days of service of a copy of this order with notice of entry, at a time and date to be specified upon demand, with notice of not less than 20 days.

This constitutes the decision and order of the court.
Decision Date: January 30, 2007