Abelard v. Interfaith Medical Center

• Decision Date: 28 March 1994
• Citation: 202 A.D.2d 615,609 N.Y.S.2d 638
• Parties: Dicilia ABELARD, et al., Respondents, v. INTERFAITH MEDICAL CENTER, et al., Defendants; Steven Divack, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 638

609 N.Y.S.2d 638

202 A.D.2d 615

Dicilia ABELARD, et al., Respondents, v. INTERFAITH MEDICAL CENTER, et al., Defendants Steven Divack, Appellant.

Supreme Court, Appellate Division Second Department.

March 28, 1994.

O'Leary & O'Leary, Jamaica (Joseph D. Furlong, of counsel), for appellant.

Before LAWRENCE, J.P., and JOY, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for medical malpractice, the defendant Steven Divack appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Kings County (Levine, J.), dated March 6, 1992, as, in effect, denied those branches of his motion which were to dismiss the complaint insofar as it is asserted against him for lack of personal jurisdiction and as barred by the applicable Statute of Limitations, and (2) so much of an order of the same court dated October 23, 1992 as denied his motion to dismiss the complaint insofar as it is asserted against him based upon the plaintiffs' failure to prosecute the action and as barred by the applicable Statute of Limitations.

ORDERED that the appeal from the order dated March 6, 1992, is dismissed; and it is further,

ORDERED that the order dated October 23, 1992, is reversed insofar as appealed from, on the law, the appellant's motion is granted, and the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The plaintiffs failed to respond to the appellant's demand that they serve and file a note of issue in this action within 90 days after the receipt of the notice (see, CPLR 3216[a]. Contrary to the finding of the Supreme Court, the plaintiffs' attorney's request for and the scheduling of a preliminary conference did not obviate the requirement that the plaintiffs either move to extend the 90-day period or to vacate the notice (see, Wilson v. Nembhardt, 180 A.D.2d 731, 580 N.Y.S.2d 70; Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87; Meth v. Maimonides Med. Ctr., 99 A.D.2d 799, 472 N.Y.S.2d 134).

In light of the plaintiffs' complete failure to respond to the 90-day notice, they were required to provide a reasonable excuse for their default and to demonstrate a meritorious cause of action (see, CPLR 3216[e]; Turman v. Amity OBG Assocs., supra; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483). Even assuming that the proffered excuse of law office failure was...