Barton v. Jablon
| Decision Date | 16 March 1992 |
| Citation | 581 N.Y.S.2d 101,181 A.D.2d 755 |
| Parties | Thomas BARTON, et al., Respondents, v. Scott JABLON, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Werner & Kennedy, New York City (John V. Henry, of counsel), for appellants.
Joachim, Flanzig & Beasley, Mineola (Cathy S. Flanzig, of counsel), for respondents.
Before THOMPSON, J.P., and HARWOOD, ROSENBLATT and RITTER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for chiropractic malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Brucia, J.), dated May 1, 1990, which granted the plaintiffs' motion to restore the action to the trial calendar and denied the defendants' cross motion to dismiss the action for failure to prosecute.
ORDERED that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the action is dismissed.
The record reveals that the within action for chiropractic malpractice, originally commenced in 1983, twice appeared on the court's trial calendar in 1989, during which time the parties began to select a jury. The case was stricken from the trial calendar on both occasions and the juries selected were disbanded at the plaintiffs' request since, according to the plaintiffs, they could not secure the appearance of an expert witness. A period of approximately seven months elapsed before the plaintiffs ultimately moved to restore the matter to the trial calendar. In response, the defendants cross-moved to dismiss the action on the ground that the plaintiffs had neglected to prosecute the action. The Supreme Court granted the plaintiffs' motion and denied the defendants' cross motion. We reverse.
A plaintiff who seeks to restore a case to the trial calendar within a year following its being stricken therefrom, must bear the burden of demonstrating the existence of a meritorious cause of action, show a sufficient reason for the delay, and establish the absence of prejudice to his or her adversary (see, Public Adm. of County of N.Y. v. Heil Corp., 126 A.D.2d 533, 510 N.Y.S.2d 655; Kunker v. Charbonneau Contr. Corp., 119 A.D.2d 884, 500 N.Y.S.2d 439; cf., Balducci v. Jason, 133 A.D.2d 436, 437, 519 N.Y.S.2d 656). The plaintiffs have failed to discharge this burden.
In support of the plaintiffs' application, counsel conclusorily asserted that the seven month delay in moving to restore the case to the trial calendar occurred because the matter had been...
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