Background

The Plaintiff alleged that our clients committed medical malpractice during urologic treatment. Plaintiff failed to participate in discovery, failed to appear for a discovery conference, and did not timely file or vacate the Note of Issue. The case was marked administratively dismissed as a result. We served a 90-day-notice pursuant to CPLR § 3216.

Plaintiff attempts to Revive the Case

Over a year after the case was dismissed, the Plaintiff moved to vacate the dismissal and restore the case to the active calendar, citing “law office failure” and clerical errors as the reason for the delay.

We aggressively opposed the Plaintiff’s motion to restore and cross-moved for a final judgment of dismissal pursuant to CPLR 3216. Our legal strategy focused on the Plaintiff’s failure to meet the two-prong test required to vacate a dismissal: showing both a reasonable excuse for the delay and a meritorious cause of action.

• We contended that the vague claims of “clerical oversight” did not constitute a reasonable excuse for a delay that spanned more than a year, especially given the history of discovery defaults in the case.
• We argued that in a medical malpractice action, a Plaintiff must provide an affidavit from a medical expert to establish the merit of their claims. The Plaintiff failed to produce any such affidavit, rendering their application legally insufficient.
• We highlighted that the Plaintiff had ignored the 90-day notice and failed to seek an extension of time, which, under New York law, justifies the permanent dismissal of the action.

Outcome

The Court agreed with our position, denying the Plaintiff’s motion to restore the case and granting our cross-motion for dismissal. By holding the Plaintiff to the strict standards of CPLR 3216, we successfully prevented the revival of a stale, multi-year litigation. The Court found that the Plaintiff’s failure to provide an excuse for the delay, was fatal to their case.