Muriel Stroll, as executor of the estate of Norman Stroll, and Muriel Stroll, individually, appellant,
Long Island Jewish Medical Center, respondent. Index No. 700032/13
Schlitt Law Firm, Huntington, NY (Carol L. Schlitt of
counsel), for appellant.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert
G. Vizza of counsel), for respondent.
E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the plaintiff appeals from a judgment of the
Supreme Court, Queens County (O'Donoghue, J.), entered
May 28, 2015, which, upon an order of the same court entered
April 30, 2015, denying her motion, inter alia, in effect, to
vacate the dismissal of the action pursuant to CPLR 3216 and
to restore the action to the active calendar, is in favor of
the defendant and against her dismissing the action.
that the judgment is affirmed, with costs.
a compliance conference held on December 23, 2013, the
Supreme Court so-ordered a demand pursuant to CPLR 3216
requiring the plaintiff to file a note of issue and
certificate of readiness on or before September 8, 2014, and
stating that "in the absence of a further order of this
Court made pursuant to CPLR § 2004 granting an extension
of time to file a note of issue, a default in complying with
the foregoing demand may serve as a basis for dismissal of
the action for unreasonably neglecting to proceed." The
plaintiff's counsel expressly acknowledged receipt of the
demand by signing it.
undisputed that the plaintiff subsequently failed to comply
with the terms of the demand and, as a result, the action was
administratively dismissed. The plaintiff then moved, inter
alia, in effect, to vacate the dismissal of the action
pursuant to CPLR 3216 and to restore the action to the active
calendar, on the ground that the administrative dismissal was
a legal nullity. The Supreme Court denied the motion, and the
we note that although CPLR 3216 was amended, effective
January 1, 2015, to require that a 90-day demand served by
the court set forth the specific conduct constituting the
neglect and that notice be given to the parties prior to
dismissal of the action for unreasonable neglect to proceed
(see CPLR 3216[a], [b]), the Supreme Court's
so-ordered demand pursuant to CPLR 3216 and the
administrative dismissal of the action predated the
amendments. Thus, we do not consider the amendments on this
to the plaintiff's contention, the Supreme Court's
so-ordered demand pursuant to CPLR 3216 had the same effect
as a 90-day notice pursuant to CPLR 3216 (see Benitez v
Mutual of Am. Life Ins. Co., 24 A.D.3d 708; Sarva v
Chakravorty, 14 A.D.3d 689; Bokhari v Home Depot
U.S.A., 4 A.D.3d 381; Vinikour v Jamaica Hosp.,
2 A.D.3d 518). Nor can there be any doubt that the
plaintiff's counsel, who signed the demand, actually
received a copy of it (see Balancio v American Opt.
Corp., 66 N.Y.2d 750, 751; Duranti v Dream Works
Constr., Inc., 139 A.D.3d 1000; Rocha-Silva v St.
John's Hosp., 70 A.D.3d 1025; Shcherbina v
Queens Nassau Nursing Home, Inc., 66 A.D.3d 869;
Anjum v Karagoz, 48 A.D.3d 605; Bokhari v Home
Depot U.S.A., 4 A.D.3d at 381-382).
the plaintiff was required either to timely file a note of
issue or move, before the default date, for an extension of
time pursuant to CPLR 2004. Since the plaintiff did neither,
the action was properly dismissed pursuant to CPLR 3216 on
the Supreme Court's own initiative (see Benitez v
Mutual of Am. Life Ins. Co., 24 A.D.3d at 708;
Bokhari v Home Depot U.S.A., 4 A.D.3d 381).
order to vacate the dismissal, the plaintiff was required to
demonstrate a justifiable excuse for her default, as well as
the existence of a potentially meritorious cause of action
(see CPLR 3216[e]; Duranti v Dream Works
Constr., Inc., 139 A.D.3d at 1000-1001; Bender v
Autism Speaks, Inc., 139 A.D.3d 989, 990). The
plaintiff, however, made neither of these showings.
Accordingly, the Supreme Court providently exercised its
discretion in denying that branch of her motion which was, in
effect, to vacate the dismissal of the action pursuant to
CPLR 3216 and to restore the action to the active calendar.
plaintiff's remaining contention is academic in light ...