Maharaj v. Farras

220 A.D.2d 391, 632 N.Y.S.2d 470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1995
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Tibor G. Farkas appeals from (1) an order of the Supreme Court, Queens County (Posner, J.), dated November 15, 1994, which denied his motion pursuant to CPLR 3404 to dismiss the action on the ground that it had been abandoned, and (2) an order of the same court, also dated November 15, 1994, which granted the plaintiffs’ motion to restore the action to the trial calendar.

Ordered that the orders are affirmed, with one bill of costs.

Under the circumstances of this case, where the action was not marked off the calendar due to any default on the plaintiffs’ part, the motion to restore was brought within one year of the date the case was marked off the calendar, and the physician’s affidavit annexed to the plaintiffs’ moving papers constituted a sufficient affidavit of merit, it was not an improvident exercise of discretion to grant a motion to restore the action to the trial calendar (see, Balducci v Jason, 133 AD2d 436).

We have reviewed the appellant’s remaining contention and conclude that it is without merit. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.