TATE v. PENINSULA HOSPITAL CENTER

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

Nancy TATE, Appellant, v. PENINSULA HOSPITAL CENTER, Respondent.

Decided: November 23, 1998

Before MILLER, J.P., THOMPSON, PIZZUTO, McGINITY and LUCIANO, JJ. Laurence E. Jacobson, P.C., New York, N.Y., for appellant. Fager & Amsler, East Meadow, N.Y. (Joseph Arthur Hanshe of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated December 24, 1997, which denied her motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

This case was marked off the trial calendar in March 1996 to complete discovery and was automatically dismissed as abandoned a year later, pursuant to CPLR 3404 (see, Rosser v. Scacalossi, 140 A.D.2d 318, 527 N.Y.S.2d 552).   In September 1997, the plaintiff moved to restore the action to the trial calendar.   The Supreme Court denied the motion and we affirm.

“A party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party in the event that the case is restored to the trial calendar” (Jeffs v. Janessa, Inc., 226 A.D.2d 504, 641 N.Y.S.2d 75, quoting Civello v. Grossman, 192 A.D.2d 636, 596 N.Y.S.2d 464).

 The plaintiff has failed to demonstrate a reasonable excuse for her delay of 11 months in obtaining a corrected chiropractor's report, and an additional seven months in moving to restore the case to the calendar.   In the absence of any explanation, it must be presumed that the plaintiff abandoned the action (see, Bohlman v. Lorenzen, 208 A.D.2d 582, 617 N.Y.S.2d 193;  Kopilas v. Peterson, 206 A.D.2d 460, 461, 614 N.Y.S.2d 562;  Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486, 567 N.Y.S.2d 842;  Horn v. Schenck Transp. Co., 65 A.D.2d 589, 409 N.Y.S.2d 256).

 Furthermore, in view of the plaintiff's lengthy delay in moving to restore the case to the trial calendar and the fact that six and one-half years have elapsed since the date of the accident that allegedly caused the plaintiff's injuries, the defendant would be prejudiced if the matter were restored to the trial calendar (see, Jeffs v. Janessa, Inc., supra;  Civello v. Grossman, supra;  Hewitt v. Booth Mem. Med. Ctr., 178 A.D.2d 401, 577 N.Y.S.2d 104).

MEMORANDUM BY THE COURT.

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