DAVIS v. CARDIOVASCULAR CONSULTANTS OF LONG ISLAND (2009)

In an action to recover damages for medical malpractice, etc., the defendants Cardiovascular Consultants of Long Island, P.C., Alan B. Cohen, Bruce M. Decter, and David A. Hess appeal, as limited by their brief, from so much of an amended order of the Supreme Court, Nassau County (Mahon, J.), entered November 12, 2008, as granted that branch of the plaintiff's motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216.

ORDERED that the amended order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 is denied.

An order entered November 7, 2007, which warned the plaintiff that the failure to serve and file a note of issue would result in dismissal of the action, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 871 N.Y.S.2d 669; Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698; Giannoccoli v. One Cent. Park W. Assocs., 15 A.D.3d 348, 790 N.Y.S.2d 159; Betty v. City of New York, 12 A.D.3d 472, 784 N.Y.S.2d 621). Having received a 90-day notice, the plaintiff was required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395; McKinney v. Corby, 295 A.D.2d 580, 581, 744 N.Y.S.2d 882). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v. County of Nassau, 52 A.D.3d 653, 860 N.Y.S.2d 196; Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209). Here, the plaintiff failed to submit any expert medical opinion evidence to demonstrate the merit of his medical malpractice action (see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353; Fiore v. Galang, 64 N.Y.2d 999, 1000-1001, 489 N.Y.S.2d 47, 478 N.E.2d 188; Salch v. Paratore, 60 N.Y.2d 851, 852, 470 N.Y.S.2d 138, 458 N.E.2d 379; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Burke v. Klein, 269 A.D.2d 348, 348-349, 703 N.Y.S.2d 203; Abelard v. Interfaith Med. Ctr., 202 A.D.2d 615, 616, 609 N.Y.S.2d 638; Feinblum v. Dybner, 197 A.D.2d 560, 604 N.Y.S.2d 754). Accordingly, that branch of his motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 should have been denied.