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Fernandez v. Staten Isl. Oral Maxillofacial

Appellate Division of the Supreme Court of New York, Second Department
Dec 17, 2001
289 A.D.2d 372 (N.Y. App. Div. 2001)

Opinion

2000-02432

Submitted November 28, 2001.

December 17, 2001.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated February 5, 2001, which granted the defendants' motion to dismiss the action pursuant to CPLR 3404 and denied her cross motion to restore the action to the trial calendar.

Alan S. Ripka, P.C. (Pollack, Pollack, Isaac DeCicco, New York, N Y [Brian J. Isaac] of counsel), for appellant.

Peltz Walker, New York, N.Y. (Jeffrey P. Santoro of counsel), for respondents.

Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, STEPHEN G. CRANE, JJ.


ORDERED that the order is affirmed, with costs.

A party moving to restore an action to the trial calendar more than one year after it was stricken from the calendar, after it has been dismissed pursuant to CPLR 3404, must 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, Basetti v. Nour, A.D.2d [2d Dept., Oct. 1, 2001]; McCarthy v. Bagner, 271 A.D.2d 509; Schwartz v. Mandelbaum Gluck, 266 A.D.2d 273). The plaintiff failed to establish these elements. Accordingly, the Supreme Court correctly granted the defendants' motion and denied the plaintiff's cross motion.

RITTER, J.P., GOLDSTEIN, FRIEDMANN, FEUERSTEIN and CRANE, JJ., concur.


Summaries of

Fernandez v. Staten Isl. Oral Maxillofacial

Appellate Division of the Supreme Court of New York, Second Department
Dec 17, 2001
289 A.D.2d 372 (N.Y. App. Div. 2001)
Case details for

Fernandez v. Staten Isl. Oral Maxillofacial

Case Details

Full title:LIZETTE FERNANDEZ, appellant, v. STATEN ISLAND ORAL MAXILLOFACIAL SURGERY…

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

Date published: Dec 17, 2001

Citations

289 A.D.2d 372 (N.Y. App. Div. 2001)
734 N.Y.S.2d 886

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