Prado v. Catholic Medical Center of Brooklyn & Queens, Inc.

Appellate Division of the Supreme Court of New York

Prado v. Catholic Medical Center of Brooklyn & Queens, Inc.

237 A.D.2d 341, 655 N.Y.S.2d 58, 1997 N.Y. App. Div. LEXIS 2353

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

DecidedMarch 10, 1997

StatusPublished

Cited by8 cases

This text of 237 A.D.2d 341 (Prado v. Catholic Medical Center of Brooklyn & Queens, Inc.) 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

Prado v. Catholic Medical Center of Brooklyn & Queens, Inc., 237 A.D.2d 341, 655 N.Y.S.2d 58, 1997 N.Y. App. Div. LEXIS 2353 (N.Y. Ct. App. 1997).

Pincite

Opinion

—In an action to recover damages for medical malpractice, etc., the defendants Catholic Medical Center of Brooklyn and Queens, Inc., St. John’s Queens Hospital, Dr. B. Younus, Dr. Kenel Pierre, Dr. DeSlate, and Dr. Sekar appeal from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated May 24, 1996, as granted those branches of the plaintiffs’ motion which were to restore the action as to those defendants to the trial calendar.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants, and those branches of the plaintiffs’ motion which were to restore the action against the appellants to the trial calendar is denied.

It is well settled that a party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the absence of prejudice to the nonmoving party (see, Yacono v Waterman S. S. Co., 216 AD2d 556; Kopilas v Peterson, 206 AD2d 460). The plaintiffs in this case have failed to meet this burden.

Counsel’s assertion that the approximately 16-month delay in moving to restore the case to the trial calendar occurred because she was in the midst of settlement negotiations is an insufficient excuse for delay in the prosecution of an action (see, Brady v Mastrianni, Abbuhl & Murphy, 187 AD2d 858; Franck v CNY Anesthesia Group, 175 AD2d 605; Leone v Bates Plan-A-Home, 144 AD2d 759). Furthermore, in view of the fact that more than 13 years have passed since the commission of the alleged medical malpractice, we can conclude that the appellants would be significantly prejudiced if the matter were to be restored to the trial calendar (see, Civello v Grossman, 192 AD2d 636; Hewitt v Booth Mem. Med. Ctr., 178 AD2d 401). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.

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—In an action to recover damages for medical malpractice, etc., the defendants Catholic Medical Center of Brooklyn and Queens, Inc., St. John’s Queens Hospital, Dr. B. Younus, Dr. Kenel Pierre, Dr. DeSlate, and Dr. Sekar appeal from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated May 24, 1996, as granted those branches of the plaintiffs’ motion which were to restore the action as to those defendants to the trial calendar.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants, and those branches of the plaintiffs’ motion which were to restore the action against the appellants to the trial calendar is denied.

It is well settled that a party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the absence of prejudice to the nonmoving party (see, Yacono v Waterman S. S. Co., 216 AD2d 556; Kopilas v Peterson, 206 AD2d 460). The plaintiffs in this case have failed to meet this burden.

Counsel’s assertion that the approximately 16-month delay in moving to restore the case to the trial calendar occurred because she was in the midst of settlement negotiations is an insufficient excuse for delay in the prosecution of an action (see, Brady v Mastrianni, Abbuhl & Murphy, 187 AD2d 858; Franck v CNY Anesthesia Group, 175 AD2d 605; Leone v Bates Plan-A-Home, 144 AD2d 759). Furthermore, in view of the fact that more than 13 years have passed since the commission of the alleged medical malpractice, we can conclude that the appellants would be significantly prejudiced if the matter were to be restored to the trial calendar (see, Civello v Grossman, 192 AD2d 636; Hewitt v Booth Mem. Med. Ctr., 178 AD2d 401). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.

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237 A.D.2d 341, 655 N.Y.S.2d 58, 1997 N.Y. App. Div. LEXIS 2353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prado-v-catholic-medical-center-of-brooklyn-queens-inc-nyappdiv-1997.

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