At page 539 expert affirmation of merit is required to restore a medical malpractice action to the trial calendar pursuant to CPLR 3404 after it had been marked off the calendar for more than one year4 citing cases
- Jones v. Greuner, 2025 NY Slip Op 30058(U) (N.Y. Sup. Ct., New York Cty. 2025).unpublished(expert affirmation of merit is required to restore a medical malpractice action to the trial calendar pursuant to CPLR 3404 after it had been marked off the calendar for more than one year)
- Maisano v. Amsterdam Nursing Home Corp., 2024 NY Slip Op 33592(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublishedJoseph Gorum, M.D., P.C., 143 AD3d 768, 769-770 [2d Dept 2016]; Diaz v Perez, 113 AD3d 421 , 421-422 [1st Dept 2014]), such a motion must be denied even where such an affidavit or affirmation is submitted, but is found to be insufficient (…
- Madsguard v. City of New York, 78 A.D.3d 666 (N.Y. App. Div. 2d Dep't 2010).publishedA case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the party seeking to restore the case establishes the following: (1) a meritorious cau…
- Butindaro v. Grinberg, 57 A.D.3d 932 (N.Y. App. Div. 2d Dep't 2008).publishedFurthermore, the plaintiff failed to demonstrate the existence of a meritorious cause of action against the appellant (see Durr v New York Community Hosp., 43 AD3d 388 [2007]; Williams v D'Angelo, 24 AD3d 538, 539 [2005]; Iazzetta v Vicenz…
Other citing cases
- Shabat v. Schnaier, 2024 NY Slip Op 31425(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublished
v.
Joseph D'Angelo
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Levine, J.), dated August 13, 2004, which denied their[*539] motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
A case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the plaintiff demonstrates a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]; Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Cobos v Phieffer, 8 AD3d 424 [2004]). The plaintiffs failed to demonstrate, through an expert affidavit, that they have a meritorious cause of action (see Yousian v New York Med. Ctr. Hosp. of Queens, 277 AD2d 449 [2000]; Iazzetta v Vicenzi, 243 AD2d 540 [1997]; Miller v City of New York, 242 AD2d 370 [1997]). They also failed to satisfy any of the other three components of the test. Accordingly, the plaintiffs’ motion was properly denied. Schmidt, J.P., S. Miller, Mastro, Spolzino and Lunn, JJ., concur.