Opinion
570010/04, 04-137.
Decided November 5, 2004.
Plaintiffs appeal from an order of the Civil Court, New York County, entered June 23, 2003 (Jose A. Padilla, Jr., J.) which, inter alia, denied plaintiffs' cross motion to restore the action to the trial calendar.
Order entered June 23, 2003 (Jose A. Padilla, Jr., J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
This long-pending dental malpractice action was marked off the trial calendar more than one year before the subject motion to restore, upon plaintiffs' failure to answer a calendar call. In these circumstances, the motion was properly denied for plaintiffs' failure to submit an affidavit of merit, to show a reasonable excuse for not having answered the calendar call, to overcome the presumption of abandonment, or to demonstrate that restoral would not prejudice the defense in view of the death of co-defendant Kahn during the 14-year period following rendition of the dental treatment giving rise to the action ( see Nieman v. Sears, Roebuck and Co., 291 AD2d 291; Roman v. City of New York, 281 AD2d 246).
This constitutes the decision and order of the court.