Opinion
January 29, 1990
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs to be paid by the plaintiff's attorney personally, the plaintiff's motion to restore the action to the Trial Calendar is denied, and the action is dismissed for failure to prosecute.
The bare and conclusory medical affidavit submitted by the plaintiff on her third attempt to have this case restored to the Trial Calendar was clearly insufficient to establish that the plaintiff has a meritorious cause of action. Specifically, the affiant fails to provide any support for his conclusion that a scratch the decedent incurred in October 1977 while attempting to exit his Cadillac was a substantial contributing factor to his developing malignant melanoma shortly thereafter and to his death in 1982 from a stroke. Moreover, the plaintiff has failed to establish a reasonable excuse for her delay in moving to restore the action to the Trial Calendar and in obtaining an affidavit of merits. Thus the court erred in restoring the case to the Trial Calendar and in vacating the order of dismissal that had been previously entered pursuant to CPLR 3404 (see, 22 NYCRR 202.21 [f]; Balducci v. Jason, 133 A.D.2d 436; Wulster v. Rubinstein, 126 A.D.2d 545). Thompson, J.P., Brown, Eiber and Rosenblatt, JJ., concur.