Ayala v Feil

[*1] Ayala v Feil 2007 NY Slip Op 52421(U) [18 Misc 3d 127(A)] Decided on December 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, HEITLER, JJ
570705/06.

Carmen Ayala, Plaintiff-Appellant,

against

John Feil and Carlton Morrison, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered August 26, 2005, which denied her motion to restore the action to the calendar and granted defendants' cross motion to dismiss the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered August 26, 2005, affirmed, with $10 costs.

Plaintiff's motion to restore this 1996 personal injury action to the trial calendar, made approximately 16 months after issuance of the second of two mark-off orders, was properly denied for plaintiff's failure to make a sufficient factual showing that the case has merit or to present an adequate explanation to excuse the substantial delay (see 22 NYCRR § 208.14 [c]; cf. Kaufman v Bauer,
36 AD3d 481, 482 [2007]). Plaintiff's showing on the merits was inadequate, since she put forward no competent evidence on the threshold issue of serious injury (see Insurance Law § 5102[d]; Sarot v Yusufov, 301 AD2d 512, 513 [2003]). And while some portion of the initial delay may have been attributable to plaintiff's attempts to procure a new medical expert (see Ford v Empire Med. Group, 123 AD2d 820, 821 [1986]), plaintiff offered no excuse for her prolonged delay (at least eight months) in moving to restore the action after a new expert was retained. We reach no other issue.
This Constitutes the Decision and Order of the Court.
Decision Date: December 20, 2007