Opinion
2013-01-30
Marie JEDRASZAK, et al., appellants, v. COUNTY OF WESTCHESTER, et al., respondents.
Cohen, LaBarbera & Landrigan, LLP, Goshen, N.Y. (Juliana O'Grady of counsel), for appellants. Wilson, Bave, Conboy, Cozza & Couzens, White Plains, N.Y. (Claudine L. Weis of counsel), for respondents County of Westchester and Westchester County Medical Center.
Cohen, LaBarbera & Landrigan, LLP, Goshen, N.Y. (Juliana O'Grady of counsel), for appellants. Wilson, Bave, Conboy, Cozza & Couzens, White Plains, N.Y. (Claudine L. Weis of counsel), for respondents County of Westchester and Westchester County Medical Center.
Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for respondent Pradip K. Mishra.
DANIEL D. ANGIOLILLO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), entered May 7, 2012, which granted the motion of the defendant Pradip K. Mishra, and the separate motion of the defendants County of Westchester and Westchester County Medical Center pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute.
ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.
Having received valid 90–day notices from the defendants, the plaintiffs were required either to serve and file a timely note of issue, or move before the default date to either vacate the demands or to extend the 90–day period pursuant to CPLR 2004 ( see Garcia v. North Shore Long Island Jewish Forest Hills Hosp., 98 A.D.3d 644, 645, 949 N.Y.S.2d 781;Saginor v. Brook, 92 A.D.3d 860, 860, 939 N.Y.S.2d 124; Cope v. Barakaat, 89 A.D.3d 670, 931 N.Y.S.2d 910;Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919;Picot v. City of New York, 50 A.D.3d 757, 758, 855 N.Y.S.2d 237). The plaintiffs failed to respond to either of the 90–day notices.
In response to the defendants' separate motions to dismiss the complaint for failure to prosecute, the plaintiffs, in order to avoid dismissal, were required to demonstrate that there was a justifiable excuse for their delay and that they had a potentially meritorious cause of action ( seeCPLR 3216[e]; Umeze v. Fidelis Care New York, 17 N.Y.3d 751, 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060;Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 678 N.E.2d 460;Colon v. Papatolis, 95 A.D.3d 1160, 1160, 943 N.Y.S.2d 914;Davies v. Baranovich, 87 A.D.3d 1049, 1049, 929 N.Y.S.2d 758;Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 876, 898 N.Y.S.2d 869;Picot v. City of New York, 50 A.D.3d at 758, 855 N.Y.S.2d 237), but failed to do so. The plaintiffs' excuse for their failure to comply with the 90–day notices was inadequate, as was their excuse for their inordinate delay in the prosecution of this action, which was commenced in 1998 ( see Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 503–504, 655 N.Y.S.2d 848, 678 N.E.2d 460;Garcia v. North Shore Long Island Jewish Forest Hills Hosp., 98 A.D.3d at 645, 949 N.Y.S.2d 781). The plaintiffs' contention that there was a stay of all proceedings in this action in effect from 2002 until August 2011, subsequent to the defendants' service of their 90–day notices and motions to dismiss the complaint, was not supported by the record. Moreover, the plaintiffs failed to submit evidentiary proof from a medical expert to demonstrate a potentially meritorious cause of action to recover damages for medical malpractice ( see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353;Dominguez v. Jamaica Med. Ctr., 72 A.D.3d at 877, 898 N.Y.S.2d 869;see also Sicoli v. Sasson, 76 A.D.3d 1002, 1003–1004, 908 N.Y.S.2d 100).
Accordingly, the Supreme Court properly granted the defendants' motions pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them.