Mester v Cattani

[*1] Mester v Cattani 2004 NY Slip Op 50714(U) Decided on July 1, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED July 1, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1235 RI C

KAREN MESTER, CHRISTINE REINHART and MARIA BONO, Respondents,

against

ROBERT . CATTANI, M.D., Appellant.

Appeal by defendant from so much of an order of the Civil Court, Richmond County (J. McMahon, J.), entered on July 16, 2003, as granted plaintiffs' motion to restore the action to the calendar.

Order unanimously reversed without costs, plaintiffs' motion to restore the action to the calendar denied and complaint dismissed.

Plaintiffs did not move to restore within one year after it was stricken from the trial calendar (see Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.14) and were therefore required to show the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to defendant (LoFredo v CMC Occupational Health Servs.,
189 Misc 2d 781 [2001]). While a court is not precluded as a matter of law from exercising its discretion to excuse a default or delay due to law office failure (see CPLR 2005), plaintiffs' explanation, which is in the nature of law office failure, is inadequate under the circumstances presented to excuse the delay in moving to restore the case. Moreover, plaintiffs' motion to restore was not supported by an affidavit of merit. The plaintiffs submitted affidavits which were patently insufficient to establish a meritorious cause of action. Additionally, plaintiffs failed to establish a lack of prejudice to the defendant. Accordingly, the court below improvidently exercised its discretion in restoring the case to the calendar.
Decision Date: July 01, 2004