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Michele Marone v. Frederick Bevelaqua

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 24, 2012

MICHELE MARONE,
APPELLANT,
v.
FREDERICK BEVELAQUA, M.D., VALERIE PECK, M.D., AND SOL MORA, M.D.,
RESPONDENTS,
AND GOVIDAN GOPINATHAN, M.D., AND ROSEANN FAZIO, M.D.,
DEFENDANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered July 8, 2010.

Marone v Bevelaqua

Decided on July 24, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ

The order denied plaintiff's motion to vacate an order dated January 14, 2010 dismissing so much of the complaint as was asserted against defendants Frederick Bevelaqua, M.D., Valerie Peck, M.D., and Sol Mora, M.D., and to restore the action to the trial calendar.

ORDERED that the order is reversed, without costs, and plaintiff's motion to vacate the order dated January 14, 2010 dismissing so much of the complaint as was asserted against defendants Frederick Bevelaqua, M.D., Valerie Peck, M.D., and Sol Mora, M.D., and to restore the action to the trial calendar is granted.

This medical malpractice action, commenced in the Supreme Court in 1996, was transferred to the Civil Court, pursuant to CPLR 325 (d), by order dated October 7, 2002, and was marked off the Civil Court's trial calendar on September 9, 2008, after plaintiff's counsel had been granted leave to withdraw as counsel. Thereafter, plaintiff, an attorney who was suffering from a lung disease, was granted several adjournments in order to obtain new counsel. However, plaintiff was still unable to retain counsel when she appeared in court on September 25, 2009, and the Civil Court, by order dated January 14, 2010, sua sponte, dismissed so much of the complaint as was asserted against Frederick Bevelaqua, M.D., Valerie Peck, M.D., and Sol Mora, M.D. (defendants). (Summary judgment had previously been awarded by the Supreme Court dismissing so much of the complaint as was asserted against Govidan Gopinathan, M.D., and Roseann Fazio, M.D.) Thereafter, in April 2010, plaintiff moved to vacate the January 14, 2010 order and to restore the action to the trial calendar. The Civil Court denied the motion.

The Civil Court rule which governs actions stricken from the calendar (Uniform Rules for New York City Civil Court [22 NYCRR] § 208.14 [c]) has no provision for dismissing a complaint for "neglect to prosecute" (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]). Thus, the Civil Court erred in dismissing so much of the complaint as was asserted against defendants Frederick Bevelaqua, M.D., Valerie Peck, M.D., and Sol Mora, M.D.

Since plaintiff moved to restore the action to the trial calendar more than one year after it had been marked off the trial calendar, she was required to demonstrate a reasonable excuse for the delay in moving to restore, a meritorious cause of action, a lack of intention to abandon the action, and a lack of prejudice to defendant (see Swank v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Ambrose v Rudzewick, 19 Misc 3d 143[A], 2008 NY Slip Op 51100[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). We find that plaintiff has satisfied these requirements. In this regard, we note that, in opposition to a prior motion by defendants for summary judgment, plaintiff submitted an affidavit by a medical expert which, as the Supreme Court determined in its order dated August 9, 2001, was sufficient to demonstrate an arguably meritorious cause of action against each defendant. Moreover, plaintiff has amply demonstrated that the action is ready to proceed to trial.

Accordingly, the order is reversed and plaintiff's motion to vacate the order dated January 14, 2010 dismissing so much of the complaint as was asserted against defendants Frederick Bevelaqua, M.D., Valerie Peck, M.D., and Sol Mora, M.D., and to restore the action to the trial calendar is granted.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: July 24, 2012

20120724

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