Appellate Division of the Supreme Court of New York, 2000

McCarthy v. Bagner

Appellate Division of the Supreme Court of New York · Decided April 10, 2000

271 A.D.2d 509; 710 N.Y.S.2d 249; 2000 N.Y. App. Div. LEXIS 4028

Cases that cite this one

15 later published cases cite this decision.

Agli v. O'Connor (Appellate Division of the Supreme Court of New York 2012)
Fulton v. Marathon Dental Services, P.C. (Appellate Division of the Supreme Court of New York 2012)
Fulton v. Marathon Dental Services, P.C. (Appellate Division of the Supreme Court of New York 2012)
Gajek v. Hampton Bays Volunteer Ambulance Corps. (Appellate Division of the Supreme Court of New York 2010)
Cobos v. Phieffer (Appellate Division of the Supreme Court of New York 2004)
Kalyuskin v. Rudisel (Appellate Division of the Supreme Court of New York 2003)
W.J.F. Realty Corp. v. Town of Southampton (District Court, E.D. New York 2002)
Borrelli v. Maye (Appellate Division of the Supreme Court of New York 2002)
Buckley v. Astoria Federal Savings & Loan Ass'n (Appellate Division of the Supreme Court of New York 2002)
Groudine v. Delco Development Corp. (Appellate Division of the Supreme Court of New York 2001)
Basetti v. Nour (Appellate Division of the Supreme Court of New York 2001)
Fernandez v. Staten Island Oral & Maxillofacial Surgery Associates, P. C. (Appellate Division of the Supreme Court of New York 2001)
Cruz v. Volkswagen of America Inc. (Appellate Division of the Supreme Court of New York 2000)
New Field International, Inc. v. Klein (Appellate Division of the Supreme Court of New York 2000)
Gold v. Steinmetz (Civil Court of the City of New York 2000)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered April 30, 1999, which denied her motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A party seeking to restore to the trial calendar an action which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see, Rivers v Jamaica Water Supply Co., 250 AD2d 661; Fico v Health Ins. Plan, 248 AD2d 432; Lafata v 712 Fifth Ave. Assocs., 238 AD2d 552). The plaintiff failed to meet this burden. The plaintiff failed to appear for trial (see, Lee v Chion, 213 *510AD2d 602). Furthermore, in light of the plaintiffs inactivity regarding the case during the one-year and four-month delay in moving to restore the case to the calendar, the plaintiff also failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see, Jeffs v Janessa, Inc., 226 AD2d 504; Michael I. Weintraub, P. C. v Computer Rad, 209 AD2d 405; Bohlman v Lorenzen, 208 AD2d 582). Moreover, since over six years have passed since the alleged malpractice and the time that the plaintiff moved to restore the action to the trial calendar, we cannot conclude that the defendants would not be prejudiced if the action were restored to the trial calendar (see, Fico v Health Ins. Plan, 248 AD2d 432, supra; Swedish v Bourie, 233 AD2d 495; Carter v City of New York, 231 AD2d 485). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.