JANKOWICZ v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION

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

Miroslaw JANKOWICZ, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Decided: June 25, 2001

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN and NANCY E. SMITH, JJ. Rosenzweig & Berson, LLP (Ephrem Wertenteil, New York, N.Y., of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Linda H. Young of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Levine, J.), dated March 15, 2000, which denied his motion pursuant to CPLR 3404 to restore the action to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion is granted.

This action was removed from the trial calendar to allow the plaintiff to move for leave to serve an amended and supplemental verified bill of particulars.   Apparently, the action was thereafter restored to the trial calendar, because, by order dated January 6, 1997, the Supreme Court, inter alia, stayed the trial of the action for 60 days to allow the defendant, among other things, an additional physical examination.   Evidently, through no fault of the plaintiff, the defendant's doctor did not conduct the examination until June 21, 1999.   These circumstances indicate that the litigation was not abandoned by the plaintiff.   Thus, the Supreme Court should have granted the plaintiff's motion to restore the action to the trial calendar (see, Nicolich v. Fitzgerald, 259 A.D.2d 741, 687 N.Y.S.2d 418).

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