Charmack v. Presbyterian Hospital

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about September 12, 1994, which, in an action for medical malpractice, denied plaintiffs motion to vacate the dismissal of the action pursuant to CPLR 3404 and restore it to the trial calendar, and order, same court and Justice, entered on or about December 5, 1994, which, insofar as appealable, denied plaintiffs motion to renew the order of September 12, 1994, unanimously affirmed, without costs.

The case was struck from the calendar in September 1992; the instant motion to restore was not made until June 1994. While the suspension of plaintiffs attorney from the practice of law in June 1993 plausibly explains much of the delay up to that point, plaintiffs claim that his injuries kept him confined to bed in California, hampering his efforts to obtain new New York counsel, is not sufficiently demonstrated to excuse the year-long delay that ensued. Nor is a meritorious cause of action demonstrated by an expert’s affidavit that makes no reference to medical records or X-rays. Concur — Rosenberger, J. P., Wallach, Rubin, Kupferman and Tom, JJ.