Costigan v. Bleifeld

21 A.D.3d 871, 800 N.Y.S.2d 617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 2005
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 25, 2002, which denied that branch of their motion which was pursuant to CPLR 3404 to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

The plaintiffs failed to demonstrate a reasonable excuse for their failure to make the motion to restore until more than one year after the action had been marked off the trial calendar. Also, in light of the lapse of some 13 years between the date of the alleged malpractice and the time the motion under review was made, the Supreme Court could properly infer that the defendant had been prejudiced (see Collins v New York City Health & Hosps. Corp., 266 AD2d 178 [1999]; Carter v City of New York, 231 AD2d 485 [1996]). Under these circumstances, the Supreme Court properly exercised its discretion in denying the plaintiffs’ motion to restore (see Cobos v Phieffer, 8 AD3d 424 [2004]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.