BERRY v. WHITELY

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

Selma BERRY, etc., respondent, v. Horace W. WHITELY, Jr., etc., appellant.

Decided: June 28, 1999

SONDRA MILLER, J.P., DANIEL W. JOY, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. Gordon & Silber, P.C., New York, N.Y. (Michael J. Laub of counsel), for appellant. Steven P. Forbes, Bayside, N.Y., for respondent.

In an action to recover damages for medical malpractice, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated October 30, 1997, which, inter alia, granted that branch of the plaintiff's motion which was to vacate the dismissal of the action pursuant to CPLR 3404, and to restore the action to the trial calendar.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.

Since the plaintiff's submissions consisted of unsworn medical reports (see, Miller v. City of New York, 242 A.D.2d 370, 661 N.Y.S.2d 1000;  cf., Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76) and conclusory excuses for the delay (see, Ziobro v. Children's Hosp. of Buffalo, 242 A.D.2d 922, 665 N.Y.S.2d 360;  Gonzalez v. First Natl. Supermarket, 232 A.D.2d 609, 648 N.Y.S.2d 1017), the Supreme Court erred in vacating the dismissal of the action and restoring the action to the trial calendar (see, Carter v. City of New York, 231 A.D.2d 485, 647 N.Y.S.2d 28).   Contrary to the plaintiff's contentions, as 13 years have elapsed since the commission of the alleged malpractice, the defendant would be prejudiced if the action were restored to the trial calendar (see, McKenna v. Solomon, 255 A.D.2d 496, 255 A.D.2d 496;  Swedish v. Bourie, 233 A.D.2d 495, 650 N.Y.S.2d 765;  Carter v. City of New York, supra).

MEMORANDUM BY THE COURT.

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