Thompson v. Beth Isr. Med. Ctr.

• Decision Date: 05 December 2019
• Docket Number: 10115-,10115B,Index 20515/09,10115A-
• Citation: 111 N.Y.S.3d 533 (Mem),178 A.D.3d 468
• Parties: Irie THOMPSON, etc., Plaintiff–Appellant, v. BETH ISRAEL MEDICAL CENTER, et. al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 468

111 N.Y.S.3d 533 (Mem)

Irie THOMPSON, etc., Plaintiff–Appellant,

v.BETH ISRAEL MEDICAL CENTER, et. al., Defendants–Respondents.

10115-

10115A-

10115B

Index 20515/09

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

ENTERED: DECEMBER 5, 2019

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.

Harris Beach PLLC, Pittsford (Svetlana K. Ivy of counsel), for Beth Israel Medical Center, respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for Montefiore Medical Center and The Jack D. Weiler Hospital of The Albert Einstein College of Medicine, respondents.

Chesney & Nicholas, LLP, Syosset (Stephen V. Morello of counsel), for Terence Cardinal Cooke Health Care Center, respondent.

Richter, J.P., Gische, Webber, Gesmer, JJ.

Appeal from order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about August 10, 2017, which granted defendants' motions to dismiss the complaint for failure to prosecute, and denied plaintiff's motion to vacate the CPLR 3216 notices, deemed an appeal from judgments, same court and Justice, entered on or about September 7, 2017 ( CPLR 5520[c] ), and, as so considered, said judgments unanimously affirmed, without costs. Appeal from order, same court (Lewis J. Lubell, J.), entered on or about May 1, 2018, which recalled and vacated an order entered on or about October 31, 2017, unanimously dismissed, without costs, as abandoned.

The court providently granted defendants' motions to dismiss this action alleging medical malpractice. Plaintiff failed to show that she did not intend to abandon prosecution of the action, that her history of extensive delay was justified, or that she had a meritorious claim (see CPLR 3216 ; Mosberg v. Elahi , 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353 [1992] ; Garofalo v. Mercy Hosp. , 271 A.D.2d 642, 706 N.Y.S.2d 477 [2d Dept. 2000] ; Schneider v. Meltzer , 266 A.D.2d 801, 802, 700 N.Y.S.2d 237 [3d Dept. 1999] ; compare Espinoza v. 373–381 Park Ave. S., LLC , 68 A.D.3d 532, 891 N.Y.S.2d 355 [1st Dept. 2009] ).

We have considered plaintiff's remaining contentions and find them unavailing.