Opinion
2012-04-24
Tuvia FELDMAN, appellant, et al., plaintiff, v. Veronica B. DELANEY, etc., et al., respondents, et al., defendant.
Tuvia Feldman, Monroe, N.Y., appellant pro se. Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Edward Guardaro and Adonaid C. Medina of counsel), for respondents.
Tuvia Feldman, Monroe, N.Y., appellant pro se. Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Edward Guardaro and Adonaid C. Medina of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiff Tuvia Feldman appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 15, 2011, which denied his motion (1) to vacate an order of the same court dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against those defendants upon his failure to proceed with the trial, and (2) to restore the action to the trial calendar.
ORDERED that the order entered April 15, 2011, is affirmed, with costs.
The appellant's motion, inter alia, to vacate an order dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against them, was properly denied, as it was not made within one year after service of a copy of the order with notice of entry ( see CPLR 5015[a][1]; Wold v. City of New York, 85 A.D.3d 776, 777, 924 N.Y.S.2d 829; Valentin v. City of New York, 73 A.D.3d 755, 756, 899 N.Y.S.2d 651; Cazeau v. Paul, 2 A.D.3d 477, 478, 767 N.Y.S.2d 895; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197, 725 N.Y.S.2d 57). Furthermore, the one-year time period should not be extended in the exercise of discretion, since the appellant failed to demonstrate a reasonable excuse for his lengthy delay in moving, among other things, to vacate the order dated December 21, 2009 ( see Valentin v. City of New York, 73 A.D.3d at 756, 899 N.Y.S.2d 651; Leinas v. Long Is. Jewish Med. Ctr., 72 A.D.3d 905, 906, 898 N.Y.S.2d 500; Carter v. City of New York, 231 A.D.2d 485, 486, 647 N.Y.S.2d 28). In any event, the appellant failed to demonstrate a reasonable excuse for his failure to proceed with the trial and a potentially meritorious cause of action ( see CPLR 5015[a][1]; Schmitt v. Jeyalingam, 71 A.D.3d 757, 894 N.Y.S.2d 918; Nowell v. NYU Med. Ctr., 55 A.D.3d 573, 574, 865 N.Y.S.2d 309; Santiago v. Santana, 54 A.D.3d 929, 930, 864 N.Y.S.2d 122; Bollino v. Hitzig, 34 A.D.3d 711, 825 N.Y.S.2d 511).