Byers v. Winthrop Univ. Hosp.

Citation100 A.D.3d 817,955 N.Y.S.2d 105,2012 N.Y. Slip Op. 07948
PartiesLisa–Anne BYERS, appellant, v. WINTHROP UNIVERSITY HOSPITAL, et al., respondents.
Decision Date21 November 2012
CourtNew York Supreme Court Appellate Division

100 A.D.3d 817
955 N.Y.S.2d 105
2012 N.Y. Slip Op. 07948

Lisa–Anne BYERS, appellant,
v.
WINTHROP UNIVERSITY HOSPITAL, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 21, 2012.



H. Fitzmore Harris, P.C., New York, N.Y., for appellant.

Montfort, Healey, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for respondent Winthrop University Hospital.


Santangelo, Benvenuto & Slattery (James W. Tuffin, Melville, N.Y., of counsel),

[955 N.Y.S.2d 106]

for respondents Nassau Surgical Associates and Frank A. Monteleone.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.


[100 A.D.3d 817]In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered June 29, 2011, which denied her motion, in effect, to vacate a judgment of the same court dated June 29, 2010, dismissing the complaint pursuant to CPLR 3216, to restore the action to the calendar, and to extend her time to file a note of issue.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

[100 A.D.3d 818]There is no merit to the plaintiff's contention that the judgment improperly dismissed the complaint pursuant to CPLR 3216 and, therefore, that her motion to vacate the judgment should have been granted. The certification order dated February 16, 2010, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216 ( see Fenner v. County of Nassau, 80 A.D.3d 555, 555, 914 N.Y.S.2d 653;Sicoli v. Sasson, 76 A.D.3d 1002, 1003, 908 N.Y.S.2d 100;Rodriguez v. Five Towns Nissan, 69 A.D.3d 833, 834, 892 N.Y.S.2d 768). Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( see Fenner v. County of Nassau, 80 A.D.3d at 555, 914 N.Y.S.2d 653;Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507). In light of the plaintiff's failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 ( see Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 783, 851...

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    ...law office failure should be supported by a ‘detailed and credible’ explanation of the default at issue" ( Byers v. Winthrop Univ. Hosp., 100 A.D.3d 817, 818, 955 N.Y.S.2d 105, quoting Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 ; see Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.......
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