From Casetext: Smarter Legal Research

Costigan v. Bleifeld

Appellate Division of the Supreme Court of New York, Second Department
Sep 6, 2005
21 A.D.3d 871 (N.Y. App. Div. 2005)

Opinion

2004-06818.

September 6, 2005.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 25, 2002, which denied that branch of their motion which was pursuant to CPLR 3404 to restore the action to the trial calendar.

Robert D. Cherofsky, Nyack, N.Y., for appellants.

Fumuso, Kelly, DeVerna, Snyder, Swart Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondent.

Before: Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.


Ordered that the order is affirmed, with costs.

The plaintiffs failed to demonstrate a reasonable excuse for their failure to make the motion to restore until more than one year after the action had been marked off the trial calendar. Also, in light of the lapse of some 13 years between the date of the alleged malpractice and the time the motion under review was made, the Supreme Court could properly infer that the defendant had been prejudiced ( see Collins v. New York City Health Hosps. Corp., 266 AD2d 178; Carter v. City of New York, 231 AD2d 485). Under these circumstances, the Supreme Court properly exercised its discretion in denying the plaintiffs' motion to restore ( see Cobos v. Phieffer, 8 AD3d 424).


Summaries of

Costigan v. Bleifeld

Appellate Division of the Supreme Court of New York, Second Department
Sep 6, 2005
21 A.D.3d 871 (N.Y. App. Div. 2005)
Case details for

Costigan v. Bleifeld

Case Details

Full title:PATRICK COSTIGAN et al., Appellants, v. CHARLES J. BLEIFELD, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 6, 2005

Citations

21 A.D.3d 871 (N.Y. App. Div. 2005)
2005 N.Y. Slip Op. 6578
800 N.Y.S.2d 617

Citing Cases

Vid v. Kaufman

Pursuant to CPLR 3404, this action was automatically dismissed one year after it was marked off the calendar.…

Mooney v. City of New York

The record also reveals that even after the attorney for the defendant Covenant House advised the plaintiffs…