Aaron S. Hagler, etc., et al., appellants,
Southampton Hospital, et al., respondents, et al., defendant. Index No. 12544/97
- April 26, 2018
Wardi, Chinitz & Silverstein, Bronx, NY (Joseph T. Coiro
and Michael A. Chinitz of counsel), for appellants.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert
G. Vizza of counsel), for respondent Southampton Hospital.
Vardaro & Associates, LLP, Smithtown, NY (William D.
Demaria of counsel), for respondents James G. Zolzer and
William E. Shuell.
D. SCHEINKMAN, P.J. REINALDO E. RIVERA CHERYL E. CHAMBERS
HECTOR D. LASALLE, JJ.
action to recover damages for medical malpractice and lack of
informed consent, etc., the plaintiffs appeal from an order
of the Supreme Court, Suffolk County (Paul J. Baisley, Jr.,
J.), dated May 16, 2016. The order, insofar as appealed from,
denied the plaintiffs' motion to vacate the automatic
dismissal of the action pursuant to CPLR 3404 and to restore
the action to the trial calendar.
that the order is affirmed insofar as appealed from, with one
bill of costs to the respondents appearing separately and
filing separate briefs.
plaintiff Aaron S. Hagler (hereinafter the injured plaintiff)
allegedly was injured at the time of his birth in April 1995,
as a result of the defendants' negligence. In 1997, the
plaintiffs commenced an action against the defendants
Southampton Hospital, James G. Zolzer, and Mark Garabedian,
and a separate action against William E. Shuell, inter alia,
to recover damages for medical malpractice. The two actions
were consolidated by a so-ordered stipulation dated April 28,
1998. It is undisputed that on September 26, 2003, the action
was marked off the trial calendar upon the plaintiffs'
request so that the plaintiffs' counsel could amplify the
bill of particulars based on the injured plaintiffs recent
psychological evaluations. Later, the action was
automatically dismissed pursuant to CPLR 3404. By notice of
motion dated November 12, 2015, the plaintiffs moved to
vacate the dismissal of the action and to restore the action
to the trial calendar. The Supreme Court, inter alia, denied
the plaintiffs' motion, and the plaintiffs appeal from
that part of the order.
plaintiff seeking to vacate a dismissal of an action and to
restore the action to the trial calendar more than one year
after it has been marked off, and after it has been dismissed
pursuant to CPLR 3404, must demonstrate a potentially
meritorious cause of action, a reasonable excuse for the
delay in prosecuting the action, a lack of intent to abandon
the action, and a lack of prejudice to the defendants
(see LaMarca v Scotto Bros. Woodbury Rest., Inc., 87
A.D.3d 984; Vaream v Corines, 78 A.D.3d 933;
Basetti v Nour, 287 A.D.2d 126, 131). The plaintiff
is required to satisfy all four components of the test before
the dismissal can be vacated and the case restored (see
LaMarca v Scotto Bros. Woodbury Rest., Inc., 87
A.D.3d at 985; Vaream v Corines, 78 A.D.3d 933).
the plaintiffs failed to demonstrate a reasonable excuse for
their more than 12-year delay in moving to restore the action
to the trial calendar. The plaintiffs failed to adequately
explain why it took more than 12 years from the time the
action was marked off the trial calendar to ascertain the
effects of the injuries that the injured plaintiff allegedly
sustained at birth (cf. Sheehan v
Hollywood, 112 A.D.2d 211, 212-213). Furthermore, in
light of the plaintiffs' inactivity regarding the action
during the more than 12-year period prior to moving to
restore the action to the trial calendar, the plaintiffs
failed to rebut the presumption of abandonment that attaches
when a matter has been automatically dismissed (see Okun
v Tanners, 11 N.Y.3d 762, 763; Vaream v
Corines, 78 A.D.3d at 934; Bornstein v Clearview
Props., Inc., 68 A.D.3d 1033, 1034; Cruz v
Volkswagen of Am., 277 A.D.2d 340, 341; Jeffs v
Janessa, Inc., 226 A.D.2d 504). Moreover, the plaintiffs
failed to demonstrate that the defendants would not be
prejudiced if the case were to be restored to the trial
calendar, given the 20-year and 7-month delay between the
date this action accrued and the date of the plaintiffs'
motion to restore (see U. Joon Sung v Feng Ue Jin,
127 A.D.3d 740, 741; Sierra R. v Jamaica Hosp. Med.
Ctr., 101 A.D.3d 701, 703; Vidal v Ricciardi,
81 A.D.3d 635, 636; Costigan v Bleifeld, 21 A.D.3d
we agree with the Supreme Court's determination denying
the plaintiffs' motion to vacate the automatic dismissal
of the action pursuant to CPLR ...