Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: STEVEN W. FISHER
• Citation: Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc., 910 N.Y.S.2d 109, 77 A.D.3d 885 (N.Y. App. Div. 2010)
• Decision Date: 26 October 2010
• Parties: Jerzy GAJEK, et al., appellants, v. HAMPTON BAYS VOLUNTEER AMBULANCE CORPS., INC., et al., defendants, South Hampton Hospital, respondent.

910 N.Y.S.2d 109

77 A.D.3d 885

Jerzy GAJEK, et al., appellants,

v. HAMPTON BAYS VOLUNTEER AMBULANCE CORPS., INC., et al., defendants,South Hampton Hospital, respondent.

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

Oct. 26, 2010.

Schwartzapfel Truhowsky Marcus, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellants.

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Terence S. Reynolds of counsel), for respondent.

STEVEN W. FISHER, J.P., MARK C. DILLON, RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), entered October 28, 2009, which granted that branch of the motion of the defendant South Hampton Hospital which was pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against it and denied their cross motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar, and (2) a judgment of the same court entered February 2, 2010,which, upon the order, is in favor of the defendant South Hampton Hospital and against them dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

A case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the plaintiff demonstrates the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant ( see Strancewilko v. Martin, 50 A.D.3d 671, 854 N.Y.S.2d 533; Williams v. D'Angelo, 24 A.D.3d 538, 806 N.Y.S.2d 238; Magnone v. Gemm Custom Brokers, Inc., 17 A.D.3d 412, 792 N.Y.S.2d 358; Basetti v. Nour, 287 A.D.2d 126, 130-131, 731 N.Y.S.2d 35).

Here, the plaintiffs failed to demonstrate a reasonable excuse for the initial 10-month delay by counsel of record in obtaining a trial attorney ( see Leinas v. Long Is. Jewish Med. Ctr., 72 A.D.3d 905, 906, 898 N.Y.S.2d 500; Murray v. New York City Health & Hosps. Corp., 52 A.D.3d 792, 793, 861 N.Y.S.2d 372; Hartwich v. Young, 149 A.D.2d 769, 770, 539 N.Y.S.2d 561; Catalfamo v. Flushing Natl. Bank, 91 A.D.2d 967, 457 N.Y.S.2d 337). The excuses proffered by the subsequently retained trial attorney for the further six-month delay in moving to vacate the dismissal and restore the action, inter alia, that he was unaware that the case had been marked off the calendar, amounted to law office failure, which, under the circumstances of this case, did not constitute a reasonable excuse ( see CPLR 2005; Stancati v. Weber, 17 A.D.3d 447, 448, 792 N.Y.S.2d 612; Castillo v. City of New York, 6 A.D.3d 568, 568-569, 775 N.Y.S.2d 82; Pullem v. Town of Babylon, 253 A.D.2d 805, 677 N.Y.S.2d 513).

Moreover, the plaintiffs engaged in only minimal activity regarding the case during the 16 months which elapsed from the date it was marked off the calendar to the date they moved to restore. This limited activity was insufficient to rebut the presumption of abandonment...