David v. Interfaith Medical Center

Appellate Division of the Supreme Court of New York

David v. Interfaith Medical Center

295 A.D.2d 557, 745 N.Y.S.2d 40, 2002 N.Y. App. Div. LEXIS 6705

Appellate Division of the Supreme Court of the State of New York·Decided June 24, 2002·Published

Opinion

—In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated May 25, 2001, which denied her motion to restore the action.

Ordered that the order is reversed, on the law, with costs, the motion to restore is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

It is now well established that CPLR 3404 should be reserved strictly for cases that have reached the trial calendar (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 199). Since the instant action was never placed on the trial calendar when it was marked “off” and subsequently dismissed pursuant to CPLR 3404, the Supreme Court erred in denying the plaintiff’s motion to “restore” (see Zanani v Savad, 286 AD2d 386, 387; Murray v Smith Corp., 286 AD2d 377; Miller v Duffy, 284 AD2d 380; Georgetown Mews Owners Corp. v Campus Assoc., 283 AD2d 608). Goldstein, J.P., Luciano, Schmidt and Crane, JJ., concur.

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—In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated May 25, 2001, which denied her motion to restore the action.

Ordered that the order is reversed, on the law, with costs, the motion to restore is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

It is now well established that CPLR 3404 should be reserved strictly for cases that have reached the trial calendar (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 199). Since the instant action was never placed on the trial calendar when it was marked “off” and subsequently dismissed pursuant to CPLR 3404, the Supreme Court erred in denying the plaintiff’s motion to “restore” (see Zanani v Savad, 286 AD2d 386, 387; Murray v Smith Corp., 286 AD2d 377; Miller v Duffy, 284 AD2d 380; Georgetown Mews Owners Corp. v Campus Assoc., 283 AD2d 608). Goldstein, J.P., Luciano, Schmidt and Crane, JJ., concur.

David v. Interfaith Medical Center, 295 A.D.2d 557, 745 N.Y.S.2d 40, 2002 N.Y. App. Div. LEXIS 6705 (N.Y. Ct. App. 2002).

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