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Wulster v. Rubinstein

Appellate Division of the Supreme Court of New York, Second Department
Jan 12, 1987
126 A.D.2d 545 (N.Y. App. Div. 1987)

Opinion

January 12, 1987

Appeal from the Supreme Court, Westchester County (Gagliardi, J.).


Ordered that the order is reversed, on the law, with costs, the plaintiffs' motion is denied, the appellants' cross motion is granted, and the action is dismissed insofar as it is asserted against the appellants.

A motion to restore a case to the Trial Calendar must be supported by a proper certificate of readiness and by an affidavit showing that the action is meritorious, the reasons for the acts or omissions which resulted in its removal from the calendar and good cause for its reinstatement (see, 22 N.Y.CRR former 675.5 [b], now codified in Uniform Rules N.Y. St Trial Cts [ 22 N.Y.CRR] § 202.21 [f]). While the instant motion to restore the case to the Trial Calendar was timely brought within one year of the date the case was marked off the calendar (see, CPLR 3404), we conclude that the motion should have been denied because the plaintiffs failed to meet all of the requirements of 22 N.Y.CRR former 675.5 (b).

In order to justify restoring the case to the calendar, the plaintiffs were required to demonstrate that their action was meritorious by submitting an affidavit containing evidentiary facts by a person competent to attest thereto (see, Essner v Keavy, 104 A.D.2d 632; Vernon v. Nassau County Med. Center, 102 A.D.2d 852; Hatcher v. City of New York, 99 A.D.2d 481). In this regard, it was incumbent upon the plaintiffs, whose cause of action sounded in medical malpractice, to submit an affidavit by a physician or other qualified expert. Instead, the plaintiffs sought to establish the merit of their claim merely by submitting the deposition testimony of the parties, a copy of the verified complaint, copies of X rays taken by the defendant hospital, and a copy of a discharge report prepared by another hospital which set forth the plaintiff Carol Wulster's medical history. These documents were insufficient, as they failed to contain a statement of opinion by a medical expert to the effect that the treatment rendered had been below acceptable standards and caused Mrs. Wulster's injuries (see, Canter v. Mulnick, 60 N.Y.2d 689). In light of the plaintiffs' failure to have submitted such an affidavit, it was error to grant the plaintiffs' motion to restore and to deny the appellants' cross motion to dismiss. Bracken, J.P., Niehoff, Eiber and Sullivan, JJ., concur.


Summaries of

Wulster v. Rubinstein

Appellate Division of the Supreme Court of New York, Second Department
Jan 12, 1987
126 A.D.2d 545 (N.Y. App. Div. 1987)
Case details for

Wulster v. Rubinstein

Case Details

Full title:CAROLE WULSTER et al., Respondents, v. ALAN RUBINSTEIN et al., Appellants…

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

Date published: Jan 12, 1987

Citations

126 A.D.2d 545 (N.Y. App. Div. 1987)

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