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MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiffs’ motion to vacate the dismissal of their medical malpractice action, which had been automatically dismissed pursuant to CPLR 3404, was properly denied:

The 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 … . 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 plaintiff’s 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. * * *

Here, 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 … . 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 … . 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 … . Hagler v Southampton Hosp., 2018 NY Slip Op 05579, Second Dept 8-1-18

CIVIL PROCEDURE (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/CPLR 3404 (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))

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