Berry v. Whitely

Appellate Division of the Supreme Court of New York

Berry v. Whitely

262 A.D.2d 591, 693 N.Y.S.2d 613, 1999 N.Y. App. Div. LEXIS 7598

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1999

StatusPublished

This text of 262 A.D.2d 591 (Berry v. Whitely) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berry v. Whitely, 262 A.D.2d 591, 693 N.Y.S.2d 613, 1999 N.Y. App. Div. LEXIS 7598 (N.Y. Ct. App. 1999).

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Opinion

—In an action to recover damages for medical malpractice, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated October 30, 1997, which, inter alia, granted that branch of the plaintiffs motion which was to vacate the dismissal of the action pursuant to CPLR 3404, and to restore the action to the trial calendar.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.

Since the plaintiffs submissions consisted of unsworn medical reports (see, Miller v City of New York, 242 AD2d 370; cf., Grasso v Angerami, 79 NY2d 813, 814) and conclusory excuses [592]*592for the delay (see, Ziobro v Children’s Hosp., 242 AD2d 922; Gonzalez v First Natl. Supermarket, 232 AD2d 609), the Supreme Court erred in vacating the dismissal of the action and restoring the action to the trial calendar (see, Carter v City of New York, 231 AD2d 485). Contrary to the plaintiffs contentions, as 13 years have elapsed since the commission of the alleged malpractice, the defendant would be prejudiced if the action were restored to the trial calendar (see, McKenna v Solomon, 255 AD2d 496; Swedish v Bourie, 233 AD2d 495; Carter v City of New York, supra). S. Miller, J. P., Joy, H. Miller and Feuerstein, JJ., concur.

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—In an action to recover damages for medical malpractice, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated October 30, 1997, which, inter alia, granted that branch of the plaintiffs motion which was to vacate the dismissal of the action pursuant to CPLR 3404, and to restore the action to the trial calendar.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.

Since the plaintiffs submissions consisted of unsworn medical reports (see, Miller v City of New York, 242 AD2d 370; cf., Grasso v Angerami, 79 NY2d 813, 814) and conclusory excuses [592]*592for the delay (see, Ziobro v Children’s Hosp., 242 AD2d 922; Gonzalez v First Natl. Supermarket, 232 AD2d 609), the Supreme Court erred in vacating the dismissal of the action and restoring the action to the trial calendar (see, Carter v City of New York, 231 AD2d 485). Contrary to the plaintiffs contentions, as 13 years have elapsed since the commission of the alleged malpractice, the defendant would be prejudiced if the action were restored to the trial calendar (see, McKenna v Solomon, 255 AD2d 496; Swedish v Bourie, 233 AD2d 495; Carter v City of New York, supra). S. Miller, J. P., Joy, H. Miller and Feuerstein, JJ., concur.

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Bluebook (online)

262 A.D.2d 591, 693 N.Y.S.2d 613, 1999 N.Y. App. Div. LEXIS 7598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-whitely-nyappdiv-1999.

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