Fanning v Alan M. Freedman, M.D., P.C.
Annotate this CaseDecided on December 3, 2004
Supreme Court, Nassau County
MARY FANNING, Plaintiff,,
against
ALAN M. FREEDMAN, M.D., P.C., Defendant
31043/99
Bruce D. Alpert, J.
Upon the foregoing papers, it is ordered that the plaintiff's application for restoration of the above-captioned action to the Court's trial calendar is determined as hereinafter set forth.
A review of the motion papers suggests that moving counsel is laboring under the misimpression that this action was "marked off" the CCP I trial calendar on August 29, 2003, and that the instant application was made within the crucial, following one year period. Accordingly, plaintiff perceives that restoration is available upon request. (see, Basetti v Nour, 287 AD2d 126, 134-135; see also, Siegel, Supplemental Practice Commentaries, Mc Kinney's Cons. Laws of NY, C3404:5 [2002])
However, counsel's construction of the pivotal event is flawed in two critical respects. Initially, the action was not "marked off" the trial calendar. Rather, the Note of Issue was stricken. Moreover, vacatur of the plaintiff's Note of Issue did not occur on August 29, 2003, but rather more that two months earlier. (see, Order of the Hon. Robert Roberto, Jr., dated June 10, 2003) [*2]
As more than one year elapsed between the Note of Issue's vacatur and the service of the instant application, the action has been deemed abandoned and dismissed for a failure to prosecute. (see, CPLR 3404)
Though applications of this nature are committed to the proper exercise of the Court's discretionary authority (see, Sheridan v Mid-Island Hospital, Inc., 9 AD3d 490; Krantz v Scholtz, 201 AD2d 784, lv dsmd 83 NY2d 902; Koslov v New York City Housing Authority, 186 AD2d 540, 541; Tucker v Hotel Employees & Restaurant Employees Union, 134 AD2d 494),a plaintiff seeking to restore a case more than one year after it was stricken, and subsequent to its dismissal under CPLR 3404, must nonetheless establish: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant. (see, Borrelli v Maye, 293 AD2d 506, lv dsmd 98 NY2d 757, rearg den 99 NY2d 611)
The motion is supported by the affirmation of counsel which speaks to the delay. It is also supported by an affidavit of merit which addresses the departures from good and accepted medical practice that are asserted to have resulted in the injuries claimed. Notably, opposing counsel takes no issue with the adequacy of the affidavit of the plaintiff's medical expert.
The misimpression to which the Court has hereinabove alluded may have led to an initial failure to address the remaining criteria for restoration. In light of the opposition encountered, however, the deficiencies with which the moving papers were suffused have been addressed in reply papers. Though a party may generally not take curative steps "at a time when [its adversary] has neither the obligation nor opportunity to respond absent express leave of court" (Ritt v Lenox Hill Hospital, 182 AD2d 560, 562 [1st dept.]), the defendant's submission of responsive sur-reply papers which speak to the issues advanced by the plaintiff, albeit belatedly, obviates any concerns of prejudice resulting from the movant's procedural misstep.
Significantly, no hint of abandonment can be gleaned from the papers. On the contrary, since vacatur of the Note of Issue both trial counsel and a medical expert have been retained.
Any delay in the resumption of the prosecution of the instant action does not appear to have been deliberate, but rather to have been occasioned by the retention of trial counsel, trial counsel's absorption of a large volume of cases from plaintiff's attorney of record and a corresponding period of acclimation.
To the extent that the delay can be properly characterized as law office failure, the resulting default should not be construed as fatal. (see, Sheridan [*3]v Mid-Island Hospital, Inc., supra at p 491)
The matter is distinguishable on its facts from that presented in Cruz v Volkswagen of America, Inc. (277 AD2d 340), Diamond v J.B.J. Management Company (220 AD2d 378) and Robinson v New York City Transit Authority (203 AD2d 351), the authority on which the defendant relies, as the delays therein were exceedingly protracted by comparison.
Lastly, the defendant has not claimed, let alone demonstrated, any prejudice flowing from the delay.(see, Sheridan v Mid-Island Hospital, Inc., supra)
Based on the foregoing, the instant application is granted, the default excused and the complaint reinstated. Upon the service and filing of another Note of Issue and the payment of the requisite fee, the matter will be restored to the trial calendar.
Dated: December 3, 2004__________________
J.S.C.
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