BEVERLY BRADLEY, AS GUARDIAN OF THE PERSON AND PROPERTY OF RHOEMEL LAMPKIN, AND BEVERLY BRADLEY, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
RAMESH KONAKANCHI, D.O., DEFENDANT-APPELLANT, ET AL., DEFENDANT.
CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
CHIARI, LLP, BUFFALO (BRIAN R. HOGAN OF COUNSEL), FOR
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
from an order of the Supreme Court, Niagara County (Richard
C. Kloch, Sr., A.J.), entered December 21, 2016. The order,
among other things, denied the motion of defendant Ramesh
Konakanchi, D.O., to dismiss the action against him.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
by NeMoyer, J.: We hold that CPLR 3404 does not apply when
the note of issue is vacated.
material facts are undisputed. Plaintiff's ward was
admitted to the psychiatric unit of a hospital in the City of
Niagara Falls. Shortly thereafter, he allegedly jumped off
the hospital's roof and sustained serious physical
injuries. Plaintiff subsequently commenced the instant
medical malpractice action against, inter alia, Ramesh
Konakanchi, D.O. (defendant). Discovery ensued, and plaintiff
eventually filed a note of issue. Defendant moved to vacate
the note of issue pursuant to 22 NYCRR 202.21 (e), arguing
that discovery was incomplete. Supreme Court granted the
motion, vacated the note of issue, and ordered additional
year passed without the filing of a new note of issue
. Defendant then moved to dismiss the
action against him pursuant to CPLR 3404, which provides for
the administrative dismissal of inactive cases under certain
circumstances. Plaintiff opposed the motion, arguing that
CPLR 3404 is categorically inapplicable when the note of
issue has been vacated. The court denied the motion, although
it acknowledged the "conflicting decisions on the
breadth of CPLR Rule 3404" and observed that
"appellate clarification on the breadth of Rule 3404
would be instructive."
appeals, and we now affirm.
appeal turns entirely on the proper interpretation of CPLR
3404, which says, in full:
"A case in the supreme court or a county court marked
off' or struck from the calendar or unanswered on a
clerk's calendar call, and not restored within one year
thereafter, shall be deemed abandoned and shall be dismissed
without costs for neglect to prosecute. The clerk shall ...