Salzano v. Mastrantonio

267 A.D.2d 5, 699 N.Y.S.2d 45, 1999 N.Y. App. Div. LEXIS 12383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1999
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about December 18, 1998, which, upon reargument, adhered to a prior order granting plaintiffs motion to restore the action to the calendar, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 8, 1998, unanimously dismissed, without costs, as superseded by the appeal from the order of December 18, 1998.

As the motion court found, in the present circumstances, defendants have not been prejudiced by the three-year delay between the CPLR 3404 automatic dismissal of the action and the motion to restore (see, Zabari v City of New York, 242 AD2d 15, 18). Indeed, defendants themselves appear to acknowledge that they will not be prejudiced if provided with updated medical records and allowed to conduct a physical examination and another deposition of plaintiff, to all of which plaintiff appears amenable. Furthermore, the case involves defendants’ alleged malpractice in prescribing and administering contraindicated medication to plaintiff, and, as such, is not likely to turn on accounts of witnesses with dim memories of long ago events (see, Sanchez v Javind Apt. Corp., 246 AD2d 353, 356). Plaintiffs attorney’s law office failure in misplacing the file and not keeping track of its status indicate neglect but not willful default. Plaintiff should not be deprived of her day in court where she shows that her case has merit, there was no intent to abandon the case, and that defendants were not prejudiced by the delay (see, supra, at 355-356, citing Martinez v New York City Tr. Auth., 183 AD2d 587). Concur — Ellerin, P. J., Rosenberger, Nardelli, Mazzarelli and Friedman, JJ.