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Walton v. Clifton Springs Hospital & Clinic
Citations: 255 A.D.2d 964; 680 N.Y.S.2d 333; 1998 N.Y. App. Div. LEXIS 12226
Court: Appellate Division of the Supreme Court of the State of New York; November 12, 1998; New York; State Appellate Court
Appeal from the order denying reargument was unanimously dismissed, and the order was modified and affirmed without costs. Plaintiffs initiated a medical malpractice lawsuit in February 1991 related to injuries sustained by Deborah J. Walton from an automobile accident in August 1988, having also filed separate actions against the driver of the other vehicle and the State of New York. On February 24, 1997, Clifton Springs Hospital served a 90-day demand for the prosecution of the case and filing of a note of issue under CPLR 3216 (b). Similarly, on April 30, 1997, Dr. Andre LeFebvre served a demand. Before the expiration of these periods, plaintiffs sought to vacate the demands or obtain an indefinite extension, citing the possibility that a favorable resolution of their claim against the State might eliminate the need for the malpractice action. The Hospital cross-moved to dismiss the case for lack of prosecution, leading the Supreme Court to deny plaintiffs' motion and grant the Hospital’s cross-motion. Subsequently, LeFebvre moved to dismiss the complaint for want of prosecution, and plaintiffs cross-moved to reargue their motion. The court granted LeFebvre's motion and denied the plaintiffs' cross-motion for reargument. The decision stated that a CPLR 2004 motion for an extension of time is at the court's discretion and is appropriate after receiving a 90-day demand under CPLR 3216. To avoid a default, plaintiffs needed to file a timely note of issue or request an extension, showing a need for the extension or a good excuse for any delays. An affidavit of merit was not required for such a motion made within the 90-day window. The court erred in dismissing the action unconditionally for want of prosecution, as it did not decide the plaintiffs' motion until after the 90-day period had lapsed. Therefore, the modification allows the plaintiffs a brief extension to file a note of issue, dismissing the complaint unless they file and serve a note within 20 days of the order. The denial of reargument was deemed non-appealable.