Dominguez v. Jamaica Med. Ctr.

• Decision Date: 20 April 2010
• Citation: 898 N.Y.S.2d 869,72 A.D.3d 876
• Parties: Idelsia DOMINGUEZ, appellant, v. JAMAICA MEDICAL CENTER, respondent.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 869 72 A.D.3d 876 Idelsia DOMINGUEZ, appellant, v. JAMAICA MEDICAL CENTER, respondent. Supreme Court, Appellate Division, Second Department, New York. April 20, 2010.

Meltzer, Fishman, Madigan & Campbell, New York, N.Y. (Edward J. Madigan of counsel), for appellant.

Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao and Joseph L. DeMarzo of counsel), for respondent.

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Queens County (O'Donoghue, J.), dated July 27, 2009, which, upon an order of the same court dated June 22, 2009, denying her motion to extend the time to serve and file a note of issue and granting the defendant's cross motion pursuant to CPLR 3216 to dismiss the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, the written 90-day notice served by the defendant conformed to the provisions of CPLR 3216(b)(3). The written notice demanded that the plaintiff resume prosecutionof the action and serve and file a note of issue within 90 days after receipt of the demand, and also stated that the failure to comply with the demand will serve as a basis for a motion to dismiss the action ( see Passet v. Menorah Nursing Home, Inc., 68 A.D.3d 735, 889 N.Y.S.2d 659; Itskov v. Menorah Home & Hosp. for the Aged & Infirm, 68 A.D.3d 723, 890 N.Y.S.2d 105; Rose v. Aziz, 60 A.D.3d 925, 874 N.Y.S.2d 816; Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d 996, 843 N.Y.S.2d 123). Furthermore, the two separate conditions precedent to dismissal under CPLR 3216(b)(1) and (2) had also been met ( see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1022, 885 N.Y.S.2d 110; Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 683, 871 N.Y.S.2d 669).

Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004 ( see Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395; McKinney v. Corby, 295 A.D.2d 580, 581, 744 N.Y.S.2d 882). The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a meritorious cause of action ( see Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119; Matter of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230). The plaintiff failed to tender any excuse for her failure to comply with the 90-day notice or for her three-year delay in the prosecution of this action ( see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 678 N.E.2d 460; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Ovchinnikov v. Joyce Owners Corp., 43 A.D.3d 1124, 1127, 843 N.Y.S.2d 345; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). Furthermore, the plaintiff failed to submit any evidentiary proof in admissible form to demonstrate a meritorious cause of action ( see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353; Fiore v. Galang, 64 N.Y.2d 999, 1000-1001, 489 N.Y.S.2d 47, 478 N.E.2d 188; Salch v. Paratore, 60...