YOUSIAN v. NEW YORK MEDICAL CENTER HOSPITAL OF QUEENS (2000)

Supreme Court, Appellate Division, Second Department, New York.

Yahyak Kalimi YOUSIAN, et al., appellants, v. NEW YORK MEDICAL CENTER HOSPITAL OF QUEENS, et al., respondents.

Decided: November 27, 2000

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN and ANITA R. FLORIO, JJ. Eisenberg, Margolis, Friedman & Moses, New York, N.Y. (Steven B. Dorfman of counsel), for appellants. Vardaro & Helwig, Smithtown, N.Y. (Lawrence F. Becker of counsel), for respondents New York Medical Center Hospital of Queens, Kamyar David Tavakoli, and J. Tinglin. Santangelo, Benvenuto & Slattery (James W. Tuffin, Manhasset, N.Y. [Gabriel Mignella] of counsel), for respondent K.V. Sastry. Marulli & Associates, New York, N.Y. (Thomas A. Cullen of counsel), for respondent Jorge Gustavo Pardes.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Thomas, J.), dated January 7, 2000, which denied their motion to restore the action to the trial calendar, and granted the separate cross motions of the defendants New York Medical Center Hospital of Queens, Kamyar David Tavakoli, and J. Tinglin, the defendant K.V. Sastry, and the defendant Jorge Gustavo Pardes, to dismiss the complaint.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 A plaintiff seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate:  (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the nonmoving party (see, Fico v. Health Ins. Plan of Greater N.Y., 248 A.D.2d 432, 669 N.Y.S.2d 380).   In an action to recover damages for medical malpractice, the affidavit of merit must be by a physician or other qualified expert, and must state with specificity the expert's observations as to procedures or treatments performed and the alleged deviations from acceptable standards of medical care (see, Iazzetta v. Vicenzi, 243 A.D.2d 540, 663 N.Y.S.2d 109;  Miller v. City of New York, 242 A.D.2d 370, 661 N.Y.S.2d 1000).   The plaintiffs' submission of an unsigned and redacted physician's affidavit was insufficient to demonstrate merit (see, Fuller v. Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831).   Therefore, the Supreme Court properly exercised its discretion in denying the motion to restore the action to the trial calendar, and in granting the separate cross motions to dismiss the complaint.

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.