DYER v. Interfaith Medical Center, Defendant–Appellant. (2023)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 5, 2021, which granted plaintiff Paulette Dyer's motion, as Administrator of the Estate of William Canon, a/k/a William Cannon, to restore the action to the active calendar, extended plaintiff's time to file the note of issue and compel depositions, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiff's motion.  Although plaintiff moved to restore after the one year provided in the order had expired, the motion court had discretion to grant the motion since plaintiff demonstrated the merits of the claim, the lack of prejudice, the lack of intent to abandon the action, and a reasonable excuse for the delay (Kaufman v. Bauer, 36 A.D.3d 481, 482, 830 N.Y.S.2d 23 [1st Dept. 2007]).  After the motion court dismissed this action without prejudice, to be restored with an affidavit of merit, plaintiff immediately hired and paid an expert to opine on the merits of the case.  Plaintiff lost contact with that expert, and then the COVID–19 pandemic occurred.  Plaintiff eventually retained another expert to prepare an affidavit of merit.  This expert opined that Interfaith Medical Center (IMC) deviated from the standard of care when transferring the decedent from its hospital facilities to decedent's residential facility.  The expert's affidavit is sufficient to show the potential merit of plaintiff's claim, particularly because depositions have not yet occurred and there is other discovery outstanding (see Cruz v. Bronx Lebanon Hosp. Ctr., 73 A.D.3d 597, 598, 905 N.Y.S.2d 135 [1st Dept. 2010]).  Moreover, nothing in the record demonstrates plaintiff willfully and contumaciously disregarded court orders related to discovery, since plaintiff provided authorizations, and responded to discovery correspondences, compliance conference orders, and combined discovery demands.