DAVID v. INTERFAITH MEDICAL CENTER

Reset A A Font size: Print

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

Jacqueline DAVID, etc., Appellant, v. INTERFAITH MEDICAL CENTER, Respondent.

Decided: June 24, 2002

GLORIA GOLDSTEIN, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ. Benedict P. Morelli & Associates, P.C., New York, N.Y. (David S. Ratner and Steven C. November of counsel), for appellant.

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated May 25, 2001, which denied her motion to restore the action.

ORDERED that the order is reversed, on the law, with costs, the motion to restore is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

 It is now well established that CPLR 3404 should be reserved strictly for cases that have reached the trial calendar (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 199, 725 N.Y.S.2d 57).   Since the instant action was never placed on the trial calendar when it was marked “off” and subsequently dismissed pursuant to CPLR 3404, the Supreme Court erred in denying the plaintiff's motion to “restore” (see Zanani v. Savad, 286 A.D.2d 386, 387, 728 N.Y.S.2d 714;  Murray v. Smith Corp., 286 A.D.2d 377, 728 N.Y.S.2d 716;  Miller v. Duffy, 284 A.D.2d 380, 725 N.Y.S.2d 899;  Georgetown Mews Owners Corp. v. Campus Assocs., 283 A.D.2d 608, 725 N.Y.S.2d 864).

Copied to clipboard