Furrukh v. Forest Hills Hosp.

Decision Date05 June 2013
Citation107 A.D.3d 668,966 N.Y.S.2d 497,2013 N.Y. Slip Op. 03968
PartiesNawaz FURRUKH, et al., respondents, v. FOREST HILLS HOSPITAL, appellant, et al., defendants.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for appellant.

Bhatia & Associates PLLC, New York, N.Y. (Satish K. Bhatia of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, etc., the defendant Forest Hills Hospital appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Queens County (McDonald, J.), entered November 8, 2012, which, inter alia, denied that branch of its motion which was pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the motion of the defendant Forest Hills Hospital which was pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute is granted.

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial ( see22 NYCRR 202.21[a], [b] ). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action ( seeCPLR 3216[c]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460), here, the plaintiffs' certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant's motion which was to vacate the note of issue was properly granted ( see22 NYCRR 202.21[b], [e]; Blackwell v. Long Is. Coll. Hosp., 303 A.D.2d 615, 616, 756 N.Y.S.2d 769;Garofalo v. Mercy Hosp., 271 A.D.2d 642, 706 N.Y.S.2d 477).

Having received a 90–day demand pursuant to CPLR 3216, the plaintiffs were required to file a proper note of issue or move, before the default date, to vacate the 90–day demand or to extend the 90–day period pursuant to CPLR 2004 ( see Cope v. Barakaat, 89 A.D.3d 670, 671, 931 N.Y.S.2d 910;Gagnon v. Campbell, 86 A.D.3d 623, 624, 927 N.Y.S.2d 602;Blackwell v. Long Is. Coll. Hosp., 303 A.D.2d at 616, 756 N.Y.S.2d 769;Spilky v. TRW, Inc., 225 A.D.2d 539, 540, 638 N.Y.S.2d 792). The plaintiffs failed to timely file a proper note of issue or make a motion in response to the 90–day demand. Thus, to avoid dismissal of the complaint, the plaintiffswere required to show a justifiable excuse for the delay and a potentially meritorious cause of action ( seeCPLR 3216[e]; Umeze v. Fidelis Care N.Y., 17 N.Y.3d 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060;Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 504, 655 N.Y.S.2d 848, 678 N.E.2d 460;Blackwell v. Long Is. Coll. Hosp., 303 A.D.2d at 616, 756 N.Y.S.2d 769;Garofalo v. Mercy Hosp., 271 A.D.2d at 642–643, 706 N.Y.S.2d 477). The plaintiffs failed to demonstrate a justifiable excuse for their delay and default ( see Bhatti v. Empire...

To continue reading

Request your trial
18 cases
  • Felix v. Thomas R. Stachecki Gen. Contracting, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • June 5, 2013
    ...to recover damages for violation of the RLPHRA ( see generally Muro–Light v. Farley, 95 A.D.3d 846, 846–847, 944 N.Y.S.2d 571; [966 N.Y.S.2d 497]Morad v. Morad, 27 A.D.3d 626, 627, 812 N.Y.S.2d 126). The statutory language of the RLPHRA “is unambiguous with regard to the liability of real e......
  • McKiernan v. Vaccaro, 2017–07307
    • United States
    • New York Supreme Court — Appellate Division
    • January 16, 2019
    ...is ready for trial" ( Slovney v. Nasso, 153 A.D.3d 962, 962, 61 N.Y.S.3d 568 ; see 22 NYCRR 202.21 [a], [b]; Furrukh v. Forest Hills Hosp., 107 A.D.3d 668, 669, 966 N.Y.S.2d 497 ). Here, the plaintiff's certificate of readiness stated that significant discovery remained outstanding when the......
  • HSBC Bank USA, Nat'l Ass'n v. Izzo
    • United States
    • New York Supreme Court — Appellate Division
    • November 6, 2019
    ...pursuant to CPLR 2004 (see Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d 760, 760, 67 N.Y.S.3d 264 ; Furrukh v. Forest Hills Hosp., 107 A.D.3d 668, 669, 966 N.Y.S.2d 497 ). The plaintiff failed to do either within the 90–day period. Therefore, to excuse the default, the plaintiff was re......
  • Deutsche Bank Nat'l Trust Co. v. Inga
    • United States
    • New York Supreme Court — Appellate Division
    • December 20, 2017
    ...of action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Furrukh v. Forest Hills Hosp., 107 A.D.3d 668, 966 N.Y.S.2d 497 ; Jedraszak v. County of Westchester, 102 A.D.3d 924, 958 N.Y.S.2d 490 ). Nevertheless, it has been said that CPLR 3216 is......
  • Request a trial to view additional results
5 books & journal articles
  • Attorney conduct
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...was insuicient to demonstrate the good cause necessary to permit an untimely summary judgment motion. Furrukh v. Forest Hills Hosp. , 107 A.D.3d 668, 966 N.Y.S.2d 497 (2d Dept. 2013). In a medical malpractice action, where plaintifs failed to ile a proper note of issue after receipt of a 90......
  • Attorney conduct
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • August 2, 2020
    ...was insuicient to demonstrate the good cause necessary to permit an untimely summary judgment motion. Furrukh v. Forest Hills Hosp. , 107 A.D.3d 668, 966 N.Y.S.2d 497 (2d Dept. 2013). In a medical malpractice action, where plaintifs failed to ile a proper note of issue after receipt of a 90......
  • Attorney conduct
    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...was insufficient to demonstrate the good cause necessary to permit an untimely summary judgment motion. Furrukh v. Forest Hills Hosp. , 107 A.D.3d 668, 966 N.Y.S.2d 497 (2d Dept. 2013). In a medical malpractice action, where plaintiffs failed to file a proper note of issue after receipt of ......
  • Attorney conduct
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...was insuicient to demonstrate the good cause necessary to permit an untimely summary judgment motion. Furrukh v. Forest Hills Hosp. , 107 A.D.3d 668, 966 N.Y.S.2d 497 (2d Dept. 2013). In a medical malpractice action, where plaintifs failed to ile a proper note of issue after receipt of a 90......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT