Bouvia v. Community General Hospital , 446 N.Y.S.2d 791 ( 1981 )

Callahan, J. (dissenting).

I concur with the majority except as to that portion which modifies Special Term. As I view this record, such modification is not warranted. On November 20,1978, this malpractice action was removed by the court from the Trial Calendar until such time as a required medical malpractice panel could be convened (22 NYCRR Part 1028). Under such direction, this matter should have been treated as a deferred case pursuant to 22 NYCRR 1024.15. It was a result of a judicial administrative error that the case was improperly put on the general docket where, after the expiration of one year, it was dismissed. To date, there has been no compliance with the court order; the panel has not convened. Under these circumstances, the parties should not be required to comply with the burden of proof mandated by CPLR 3404. Furthermore, Special Term did not abuse its discretion for the reasons stated in its memorandum decision. (Appeal from orders of Onondaga Supreme Court, Murphy, J. — restore to Trial Calendar.) Present — Dillon, P. J., Callahan, Doerr, Denman and Schnepp, JJ.