Rosado v. Bronx Lebanon Hospital

278 A.D.2d 9, 717 N.Y.S.2d 141

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2000
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered September 22, 1999, which granted plaintiffs’ motion to restore the matter to the pre-note of issue calendar, and order, same court and Justice, entered on or about March 2, 2000, which denied the motion of defendants Bronx Lebanon Hospital, Maria Enrile, R.N., Kenroy Scott, M.D., and Hugh Patrick Forbes, M.D. to vacate the note of issue and order a further physical examination of the infant plaintiff, unanimously affirmed, without costs.

The motion court’s restoration of plaintiffs’ action to the prenote of issue calendar constituted a proper exercise of discretion. Plaintiffs’ motion for restoration, brought within one year of the case being marked off the calendar, was timely and plaintiffs’ submissions sufficiently demonstrated a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action and the absence of prejudice to defendants (see, Ronsco Constr. Co. v 30 E. 85th St. Co., 219 AD2d 281, 284).

The motion court also properly denied defendants’ application to vacate the note of issue and to order an additional physical examination of the infant plaintiff since defendants failed to show that the infant plaintiff had suffered additional injuries (cf., Buerger v County of Erie, 101 AD2d 1025), and since there was no demonstration that unusual and unanticipated circumstances had developed after the filing of the note of issue (see, Futersak v Brinen, 265 AD2d 452). Concur — Sullivan, P. J., Rosenberger, Nardelli, Tom and Lerner, JJ.