Budhram v American Dental Ctrs.
Annotate this CaseDecided on July 27, 2005
Civil Court of the City of New York, Kings County
Kowsil Budhram, Plaintiff,
against
American Dental Centers, Dr. Rauta, Dr. Kaushik, Dr. Shandler, and "John Doe," Defendants.
6431/98
Appearing for plaintiff: S. Felix Ngati, Brooklyn, NY; for one defendant: Cohen Kuhn & Associates, New York, NY (other defendants also filed opposition).
Arlene P. Bluth, J.
Upon the foregoing cited papers and after argument, plaintiff moves by Order to Show Cause to vacate the dismissal of her case and restore it to the active calendar. For the following reasons, plaintiff's motion is denied.
The relevant history of this case is as follows: Plaintiff brought this dental malpractice action in 1996 in the Supreme Court, Kings County; the action was transferred to this Court in [*2]June 1998 pursuant to CPLR § 325(d). The matter was subsequently marked off the trial calendar and, upon motion by plaintiff, restored by Judge Bernadette Baine on November 2, 2002. On February 24, 2003, plaintiff's counsel was relieved by Order of Judge Ellen Spodek, and plaintiff elected to proceed pro se (representing herself).
The case came up for trial on September 10, 2003 before Judge Peter Sweeney. On that date, Judge Sweeney determined that plaintiff was not ready to proceed because she had not retained an expert witness as would be necessary to prosecute this action. Giving plaintiff another chance, Judge Sweeney chose not to dismiss the case pursuant to 22 NYCRR § 208.14(d), but rather marked the case off calendar, and ruled that the matter must be reactivated by plaintiff within one year from that date, and only if accompanied by an affidavit from an expert.
When the one-year deadline passed and plaintiff had failed to comply with Judge Sweeney's directive, various defendants sought dismissal pursuant to CPLR § 3404 and 22 NYCRR § 208.14(c) and (d), but in February 2005, Judge Eileen Nadelson of this Court denied the relief, holding that the applicable statute was CPLR § 3216 which requires that a 90-day notice be served upon plaintiff before seeking dismissal. In March 2005, various defendants moved or cross-moved to dismiss the action and/or to renew and reargue Judge Nadelson's decision denying their motion to dismiss. On April 7, 2005, Judge Loren Baily-Schiffman granted defendants' motions on default and dismissed plaintiff's complaint against all defendants.
Plaintiff, represented by new counsel, now seeks to vacate that dismissal and restore the case to the calendar once again. In order to vacate the dismissal and restore her case, plaintiff must, at a minimum, proffer a reasonable excuse for her default on April 7, 2005, and establish that she has a meritorious claim. See Bitterman v. Hurewitz, 15 AD3d 434, 789 NYS2d 450 [2nd Dept 2005]; Piacentini v. Mineola Union Free School Dist., 267 AD2d 290, 700 NYS2d 205 [2nd Dept 1999]. She has done neither. In her Order to Show Cause, plaintiff states as her excuse that "I was pro se and the court did not advise me how to restore a case or file Notice of Trial [sic]. No, I do know what to do." That excuse fails to pass logical or legal muster. Plaintiff does not dispute receiving notice of defendants' motions returnable on April 7, 2005, yet she offers no excuse for her default. Not having an attorney is not an excuse for not appearing. See In re Starasis C., 18 AD3d 213, 794 NYS2d 45 [1st Dept 2005]. If plaintiff was relying upon this Court to guide her in prosecuting her case, it was her responsibility to seek out information from the Clerk's Office. Further, plaintiff, having failed to obtain an expert's affidavit as directed by Judge Sweeney more than two years ago, was in no event ready to restore her case.
Further, even if plaintiff's default (and history of delay and neglect in prosecuting her case) were excusable, she has yet to put forth any evidence of the merits of her claim, to wit, an affidavit from an expert. See Anderson v. Lamaute, 306 AD2d 2323, 761 NYS2d 87 [2nd Dept 2003] (noting that "the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of [*3]injury or damage."). The time to put forth any such evidence has long since expired. Finally, the Court notes that the alleged malpractice occurred in 1994. In eleven years, plaintiff has not even had the case evaluated by an expert. To allow plaintiff to proceed at this point would be highly prejudicial to defendants.
For the forgoing reasons, plaintiff's motion is denied.
This is the Decision and Order of the Court.
Dated:
ARLENE P. BLUTH
Judge, Civil Court
ASN by__________ on __________
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