Pak Chong Mar v. New York Infirmary-Beekman Downtown Hospital

161 A.D.2d 373, 555 N.Y.S.2d 319, 1990 N.Y. App. Div. LEXIS 5573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Robert E. White, J.), entered July 14, 1988, which denied plaintiff’s motion to vacate dismissal of the underlying action pursuant to CPLR 3404 and to restore the underlying action to the Trial Calendar, unanimously affirmed, without costs.

The record reveals that plaintiff failed to establish entitlement to vacatur of the dismissal and restoration of the underlying wrongful death and medical malpractice action to the Trial Calendar pursuant to CPLR 3404 by demonstrating a meritorious cause of action, a reasonable excuse for the delay, lack of prejudice to the opposing party and plaintiff’s intent not to abandon the action. (See, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 721; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194; Sheehan v Hollywood, 112 AD2d 211.)

In any event, plaintiff is bound by the stipulation of discontinuance, with prejudice, signed by former counsel, Goldsmith and Tabak, on plaintiff’s behalf, since plaintiff failed to demonstrate that his prior counsel lacked apparent authority to discontinue the underlying action. (CPLR 2104; Hallock v State of New York, 64 NY2d 224; Klein v Mount Sinai Hosp., 61 NY2d 865.) Concur—Murphy, P. J., Carro, Rosenberger, Asch and Rubin, JJ.