Safina v. Queens-Long Island Medical Group, P.C.

• Citation: 657 N.Y.S.2d 337,238 A.D.2d 395
• Decision Date: 14 April 1997
• Docket Number: QUEENS-LONG
• Parties: Rose SAFINA, etc., Respondent, v.ISLAND MEDICAL GROUP, P.C., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 337

657 N.Y.S.2d 337

238 A.D.2d 395

Rose SAFINA, etc., Respondent,

v.

QUEENS-LONG ISLAND MEDICAL GROUP, P.C., et al., Appellants,

et al., Defendants.

Supreme Court of New York, Appellate Division,

Second Department.

April 14, 1997.

Wortman, Fumuso, Kelly, DeVerna & Snyder, LLP, Hauppauge (Scott G. Christesen, of counsel), for appellants.

Pegalis & Wachsman, P.C., Great Neck (Gerhardt M. Nielsen, of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants Queens-Long Island Medical Group, P.C., Andrew Webber, and Arun B. Mohile appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O'Brien, J.), dated April 10, 1996, as denied their motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellants.

In a certification order dated September 15, 1993, the Supreme Court, Nassau County, sua sponte directed the plaintiff to serve and file a note of issue within 90 days. The order, which was signed, inter alia, by counsel for the plaintiff, further provided that a failure to comply "may serve as a basis for dismissal pursuant to CPLR 3216". The plaintiff thereafter failed to serve and file the note of issue, and the appellants moved pursuant to CPLR 3216 to dismiss the action as against them approximately two years later. The Supreme Court denied the motion. We reverse.

The certification order dated September 15, 1993, constituted a valid 90-day notice pursuant to CPLR 3216 (see, Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 646 N.Y.S.2d 15; see generally, Chase v. Scavuzzo, 87 N.Y.2d 228, 230, 638 N.Y.S.2d 587, 661 N.E.2d 1368; cf., Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 635 N.Y.S.2d 691), requiring the plaintiff either to comply with the notice or to request an extension of time within which to do so pursuant to CPLR 2004 prior to the default date (see, Arenas v. County of Nassau, 232 A.D.2d 514, 648 N.Y.S.2d 969; Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87; Carte v. Segall, 134 A.D.2d 397, 520 N.Y.S.2d 944). Having failed to pursue either option, the plaintiff could avoid dismissal only by establishing a reasonable excuse for her noncompliance and a meritorious cause of action (see, CPLR 3216[e] )....