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Garcia v. North Shore Long Island Jewish Forest Hills Hospital
Citations: 98 A.D.3d 644; 949 N.Y.S.2d 781
Court: Appellate Division of the Supreme Court of the State of New York; August 22, 2012; New York; State Appellate Court
In a medical malpractice case, the defendants, North Shore Long Island Jewish Forest Hills Hospital and Michael S. Drew, appealed a Supreme Court order that denied their motions to dismiss the complaint based on the plaintiff's failure to prosecute. The order also granted the plaintiff's cross-motion to extend the time to serve and file a note of issue. The appellate court reversed the order, granting the defendants' motions to dismiss the complaint and denying the plaintiff's request to extend the time as academic. The plaintiff filed the complaint on November 9, 2009, alleging injuries from medical treatment received between July 17, 2008, and August 28, 2008. Both defendants served 90-day demands under CPLR 3216, requiring the plaintiff to file a note of issue within that period or face dismissal. The plaintiff did not comply or seek an extension during the 90-day timeframe. The court found that the plaintiff failed to provide a reasonable excuse for the delay in responding to the demands or for not prosecuting the case. The plaintiff's claim that the defendants were dilatory in their discovery responses did not justify his inaction. Moreover, the plaintiff did not demonstrate a potentially meritorious malpractice claim against either defendant. Consequently, the defendants' motions to dismiss based on the plaintiff's failure to prosecute were warranted, and the plaintiff's cross-motion to extend the time to file a note of issue was rendered moot. The remaining arguments from the plaintiff were deemed without merit.