Piszczatowski v. Hill

Citation940 N.Y.S.2d 283,93 A.D.3d 707,2012 N.Y. Slip Op. 01805
PartiesRobin PISZCZATOWSKI, respondent, v. Edward E. HILL, etc., et al., appellants, et al., defendants.
Decision Date13 March 2012
CourtNew York Supreme Court Appellate Division

OPINION TEXT STARTS HERE

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellants.

Lawrence H. Singer, New York, N.Y. (Susan J. Kerker of counsel), for respondent.

RUTH C. BALKIN, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, the defendants Edward Hill, doing business as Edward E. Hill, M.D., P.C., Henry Reinhardt, and North Shore Long Island Jewish Health System, Inc., doing business as North Shore University Hospital at Glen Cove, appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated May 17, 2011, which granted the plaintiff's motion pursuant to CPLR 5015(a) to vacate the dismissal of the complaint and to restore the action to the pre-note of issue calendar.

ORDERED that the order is affirmed, with costs.

Following the dismissal of the complaint pursuant to CPLR 3126, the plaintiff moved pursuant to CPLR 5015(a) to vacate the dismissal of the complaint and to restore the action to the pre-note of issue calendar. The Supreme Court granted the plaintiff's motion.

To vacate the dismissal of the action, the plaintiff was required to demonstrate a reasonable excuse for her failure to timely file a note of issue in response to a valid 90–day notice contained in a certification order issued by the Supreme Court, as well as a potentially meritorious cause of action ( see CPLR 5015[a][1]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). The determination of a reasonable excuse lies within the Supreme Court's discretion ( see Santiago v. New York City Health & Hosps. Corp., 10 A.D.3d 393, 394, 780 N.Y.S.2d 764).

Under the particular circumstances of this case, the plaintiff demonstrated a reasonable excuse for her failure to timely file a note of issue based on law office failure ( see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633–634, 768 N.Y.S.2d 735, 800 N.E.2d 1102; Atterberry v. Serlin & Serlin, 85 A.D.3d 949, 925 N.Y.S.2d 860; Lauri v. Freeport Union Free School Dist., 78 A.D.3d 1130, 912 N.Y.S.2d 278). Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of any intent to abandon the action ( see Atterberry v. Serlin & Serlin, 85 A.D.3d at 950, 925 N.Y.S.2d 860). Thus, the delay ‘was not willful or with intent to abandon the action,’ but rather was the result of isolated neglect on the part of the plaintiff's previous attorney ( Di Simone v. Good...

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  • Smyth v. Getty Petroleum Mktg., Inc.
    • United States
    • New York Supreme Court Appellate Division
    • February 20, 2013
    ...A.D.2d at 374, 725 N.Y.S.2d 895;see also Infante v. Breslin Realty Dev. Corp., 95 A.D.3d at 1077, 944 N.Y.S.2d 608;Piszczatowski v. Hill, 93 A.D.3d 707, 708, 940 N.Y.S.2d...
  • Goldman v. Citicore I, LLC
    • United States
    • New York Supreme Court Appellate Division
    • April 26, 2017
    ...and also demonstrated the existence of a potentially meritorious cause of action (see generally CPLR 3216[e] ; Piszczatowski v. Hill, 93 A.D.3d 707, 708, 940 N.Y.S.2d 283 ). Accordingly, the court providently granted the plaintiff's motion to vacate the dismissal of the action. The Supreme ......
  • Infante v. Breslin Realty Dev. Corp.
    • United States
    • New York Supreme Court Appellate Division
    • May 15, 2012
    ...evidence of a pattern of persistent neglect by the plaintiff to prosecute or an intent to abandon the action ( see Piszczatowski v. Hill, 93 A.D.3d 707, 940 N.Y.S.2d 283;Dorio v. County of Suffolk, 58 A.D.3d at 595, 871 N.Y.S.2d 369). Accordingly, the Supreme Court should have granted the p......
  • Drake v. Moulton Mem'l Baptist Church of Newburgh
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 2012
    ...tort. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and the Supreme Court [940 N.Y.S.2d 283] granted the motion. The plaintiffs appeal. We affirm. “The First Amendment forbids civil courts from interfering in or determining religiou......
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