KRESBERG v. KERR (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants William B. Kerr and Wainscott Walk–In Medical Care, PLLC, the defendant Bernard D. Raxlen, and the defendant Carolyn B. Welcome separately appeal from an order of the Supreme Court, Suffolk County (George Nolan, J.), dated September 13, 2023.  The order, insofar as appealed from, denied those defendants’ separate motions pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with one bill of costs payable to the defendants appearing separately and filing separate briefs, and the separate motions of the defendants William B. Kerr and Wainscott Walk–In Medical Care, PLLC, the defendant Bernard D. Raxlen, and the defendant Carolyn B. Welcome pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute are granted.

In March 2013, following the death of his spouse, Debra Marino (hereinafter the decedent), the plaintiff, Richard Kresberg, individually and as the executor of the decedent's estate, commenced this action, inter alia, to recover damages for medical malpractice, alleging, among other things, that the defendants’ negligent treatment of the decedent resulted in her death from lung cancer.  Pursuant to an order dated May 20, 2021, the plaintiff was directed to file a note of issue by June 14, 2021.  The plaintiff failed to file a note of issue by that date.  In June 2022, the defendants William B. Kerr and Wainscott Walk–In Medical Care, PLLC (hereinafter Wainscott), the defendant Bernard D. Raxlen, and the defendant Carolyn B. Welcome separately served 90–day notices on the plaintiff, demanding that the plaintiff file a note of issue within 90 days of the demands or face dismissal.  Thereafter, in May and June 2023, Kerr and Wainscott, Raxlen, and Welcome separately moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute.  In an order dated September 13, 2023, the Supreme Court, inter alia, denied the defendants’ separate motions.  The defendants appeal.

“Where, as here, a plaintiff has been served with a 90–day demand ․ pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90–day demand period” (Turner v. Fuchs, Cooperstein & Greengold, LLC, 216 A.D.3d 1037, 1038, 189 N.Y.S.3d 664;  see HSBC Bank USA, N.A. v. Izzo, 177 A.D.3d 648, 649, 109 N.Y.S.3d 886).  Here, the plaintiff did neither.

“In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates ‘a justifiable excuse for the failure to timely abide by the 90–day demand, as well as the existence of a potentially meritorious cause of action’ ” (Holness v. Gigglesworld Corp., 233 A.D.3d 661, 662, 223 N.Y.S.3d 676, quoting Turner v. Fuchs, Cooperstein & Greengold, LLC, 216 A.D.3d at 1038, 189 N.Y.S.3d 664;  see CPLR 3216[e]).  “ ‘Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue’ ” (Mega Contr., Inc. v. Adventure Masonry Corp., 188 A.D.3d 664, 665, 134 N.Y.S.3d 395, quoting HSBC Bank USA, N.A. v. Izzo, 177 A.D.3d at 649, 109 N.Y.S.3d 886).  Here, the vague and conclusory claim of law office failure set forth by the plaintiff's attorney did not constitute a justifiable excuse (see Ting Chen v. Xiao Fang Shen, 228 A.D.3d 798, 799, 213 N.Y.S.3d 416;  Mega Contr., Inc. v. Adventure Masonry Corp., 188 A.D.3d at 665, 134 N.Y.S.3d 395;  HSBC Bank USA, N.A. v. Izzo, 177 A.D.3d at 649, 109 N.Y.S.3d 886).  Moreover, the plaintiff failed to submit evidentiary proof from a medical expert demonstrating the existence of a potentially meritorious cause of action (see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353;  Gallery v. Messerschmitt, 151 A.D.3d 940, 940, 54 N.Y.S.3d 313;  Jedraszak v. County of Westchester, 102 A.D.3d 924, 925, 958 N.Y.S.2d 490).

The plaintiff's remaining contention is without merit.

Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendants’ separate motions pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute.

CHAMBERS, J.P., WOOTEN, VOUTSINAS and LOVE, JJ., concur.