SHERIDAN v. Hormoz Mansouri, et al., respondents.

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

Charles P. SHERIDAN, etc., appellant, v. MID-ISLAND HOSPITAL, INC., defendant, Hormoz Mansouri, et al., respondents.

Decided: July 30, 2004

HOWARD MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and SANDRA L. TOWNES, JJ. Segan, Nemerov & Singer, P.C., New York, N.Y. (Marion S. Mishkin of counsel), for appellant. Santangelo, Benvenuto & Slattery (James W. Tuffin, Manhasset, N.Y. [Gabriel Mignella] of counsel), for respondent Hormoz Mansouri. Lewis Johs Avallone Aviles & Kaufman, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), for respondents Gastroenterology Associates of Long Island, P.C., Robert Gross, Charles S. Farber, and Paul R. Pervil. Charles X. Connick, PLLC, Mineola, N.Y. (Michael J. Boranian and Glenn P. McNamee of counsel), for respondent Nescati Keskin.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), entered December 12, 2002, which granted the separate motions of the defendant Hormoz Mansouri, the defendants Gastroenterology Associates of Long Island, P.C., Robert Gross, Charles S. Farber, and Paul R. Pervil, and the defendant Nescati Keskin pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law and as a matter of discretion, with one bill of costs, the motions are denied, and the complaint is reinstated insofar as asserted against the defendants Hormoz Mansouri, Gastroenterology Associates of Long Island, P.C., Robert Gross, Charles S. Farber, Paul R. Pervil, and Nescati Keskin.

 The Supreme Court improvidently exercised its discretion in dismissing the complaint insofar as asserted against the respondents pursuant to CPLR 3216(a) for neglect to prosecute.   In opposing the motions, the plaintiff established a justifiable excuse for the delay and that his causes of action were meritorious (see CPLR 3216(e);  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460).   In order to restore a matter which has been stricken from the trial calendar pursuant to CPLR 3404, a plaintiff must demonstrate a meritorious claim, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and a lack of prejudice (see Lupoli v. Venus Labs., 264 A.D.2d 820, 695 N.Y.S.2d 598).   Here, the plaintiff's delay in prosecution of the action, while the result of law office failure, was not willful and that during this period there was some activity by counsel to ascertain the status of a bankruptcy stay regarding a Chapter 11 bankruptcy petition filed by the defendant Mid-Island Hospital, Inc., which adequately rebutted the presumption of abandonment (see Velez v. Moslin Assocs., Inc., 278 A.D.2d 164, 165, 719 N.Y.S.2d 11;  Etter v. County of Nassau, 261 A.D.2d 571, 690 N.Y.S.2d 712).   Further, the affirmation of the plaintiff's medical expert was sufficient to demonstrate a meritorious cause of action, with the physician specifying the acts and omissions constituting the medical malpractice which he causally related to the death of plaintiff's decedent (see Ford v. Empire Med. Group, 123 A.D.2d 820, 507 N.Y.S.2d 436).   Nor did the respondents establish that they would be prejudiced by the restoration of this action to the trial calendar.

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