Opinion
2012-03-13
Robin PISZCZATOWSKI, respondent, v. Edward E. HILL, etc., et al., appellants, et al., defendants.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellants. Lawrence H. Singer, New York, N.Y. (Susan J. Kerker of counsel), for respondent.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellants. Lawrence H. Singer, New York, N.Y. (Susan J. Kerker of counsel), for respondent.
RUTH C. BALKIN, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action to recover damages for medical malpractice, the defendants Edward Hill, doing business as Edward E. Hill, M.D., P.C., Henry Reinhardt, and North Shore Long Island Jewish Health System, Inc., doing business as North Shore University Hospital at Glen Cove, appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated May 17, 2011, which granted the plaintiff's motion pursuant to CPLR 5015(a) to vacate the dismissal of the complaint and to restore the action to the pre-note of issue calendar.
ORDERED that the order is affirmed, with costs.
Following the dismissal of the complaint pursuant to CPLR 3126, the plaintiff moved pursuant to CPLR 5015(a) to vacate the dismissal of the complaint and to restore the action to the pre-note of issue calendar. The Supreme Court granted the plaintiff's motion.
To vacate the dismissal of the action, the plaintiff was required to demonstrate a reasonable excuse for her failure to timely file a note of issue in response to a valid 90–day notice contained in a certification order issued by the Supreme Court, as well as a potentially meritorious cause of action ( see CPLR 5015[a][1]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). The determination of a reasonable excuse lies within the Supreme Court's discretion ( see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764).
Under the particular circumstances of this case, the plaintiff demonstrated a reasonable excuse for her failure to timely file a note of issue based on law office failure ( see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633–634, 768 N.Y.S.2d 735, 800 N.E.2d 1102; Atterberry v. Serlin & Serlin, 85 A.D.3d 949, 925 N.Y.S.2d 860; Lauri v. Freeport Union Free School Dist., 78 A.D.3d 1130, 912 N.Y.S.2d 278). Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of any intent to abandon the action ( see Atterberry v. Serlin & Serlin, 85 A.D.3d at 950, 925 N.Y.S.2d 860). Thus, the delay “ ‘was not willful or with intent to abandon the action,’ ” but rather was the result of isolated neglect on the part of the plaintiff's previous attorney ( Di Simone v. Good Samaritan Hosp., 100 N.Y.2d at 634, 768 N.Y.S.2d 735, 800 N.E.2d 1102, quoting Carte v. Segall, 134 A.D.2d 397, 398, 520 N.Y.S.2d 944). In addition, the plaintiff's submissions were sufficient to demonstrate that she has a potentially meritorious medical malpractice cause of action ( see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d at 634, 768 N.Y.S.2d 735, 800 N.E.2d 1102).
Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 5015(a) to vacate the dismissal of the complaint pursuant to CPLR 3216 and to restore the action to the pre-note of issue calendar.