Balducci v. Jason

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before NIEHOFF
• Citation: Balducci v. Jason, 519 N.Y.S.2d 656, 133 A.D.2d 436 (N.Y. App. Div. 1987)
• Decision Date: 28 September 1987
• Parties: Mary BALDUCCI, etc., Respondent, v. N. Mitchell JASON, et al., Appellants, et al., Defendant (and another title).

Page 656

519 N.Y.S.2d 656

133 A.D.2d 436

Mary BALDUCCI, etc., Respondent, v. N. Mitchell JASON, et al., Appellants, et al., Defendant (and another title).

Supreme Court, Appellate Division Second Department.

Sept. 28, 1987.

Rivkin, Radler, Dunne & Bayh, Uniondale (Frank L. Amoroso, David P. Franks and Rhonda S. Kahn, of counsel), for appellants.

William A. Scorzari, P.C., Huntington (Stanley E. Orzechowski, of counsel), for respondent.

Before NIEHOFF, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Suffolk County (Orgera, J.), dated March 19, 1986, which, inter alia, granted the plaintiff Mary Balducci (hereinafter the plaintiff) leave to renotice the case for trial. The appeal brings up for review so much of an order of the same court, entered May 11, 1987, as, upon reargument, adhered to the original determination (see, CPLR 5517[b] ).

ORDERED that the appeal from the order dated March 19, 1986, is dismissed, as that order was superseded by the order granting reargument; and it is further,

ORDERED that the order entered May 11, 1987, is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

This medical malpractice action was marked off the trial calendar, at the plaintiff's request, to permit the substitution of herself as administratrix of the deceased plaintiff's estate, and to afford her the opportunity to amend the complaint to plead a cause of action for wrongful death. Thereafter, a timely motion for substitution was granted. The plaintiff was also granted permission to withdraw that branch of her motion to amend the complaint to assert a cause of action for wrongful death, without prejudice to renew. Subsequently, the plaintiff timely moved, within one year after the action had been marked off the calendar, to restore the action to the trial calendar (see, CPLR 3404).

The applicable uniform rule with respect to motions to reinstate a note of issue (see, 22 NYCRR 202.21[f] ), requires that such a motion 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. Since a case, as a general rule, is marked off the calendar or a note of issue stricken because of an act or omission in the nature of a default (see, e.g., Marabella v. Lundy, 60 N.Y.2d 581, 467 N.Y.S.2d 41, 454 N.E.2d 122; Wulster v. Rubinstein, 126 A.D.2d 545, 510 N.Y.S.2d 668, lv. dismissed 70 N.Y.2d 694, --- N.Y.S.2d ----, 512 N.E.2d 557; Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773; Monacelli v. Board of Educ., 92 A.D.2d 930, 460 N.Y.S.2d 598; Rothenberg v. Parkway Exterminating Co., 90 A.D.2d 497, 454 N.Y.S.2d 747), the standard for restoring the action to the calendar is essentially the same as the standard for setting aside a default judgment (see, Horn v. Schenck Transp. Co., 65 A.D.2d 589, 590, 409 N.Y.S.2d 256). Consequently, where the cause of action sounds in medical malpractice, courts have held that in order to satisfy the requirements of 22 NYCRR 202.21(f), it is incumbent upon the plaintiff to submit an affidavit by a...