Keppler v. Rosch

In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Westchester County (Walsh, J.), entered January 5, 1990, which granted the defendant’s motion to dismiss the action pursuant to CPLR 3404 and denied the plaintiff’s cross motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

It is well settled that in order to restore a matter which has been stricken from the trial calendar, the movant must produce evidence which (1) rebuts the presumption of abandonment, (2) demonstrates the merit of the underlying cause of action, and (3) shows that the defendant has not been prejudiced (Hillegass v Duffy, 148 AD2d 677; Rosser v Scacalossi, 140 AD2d 318). The plaintiff failed to offer a reasonable excuse for the two-year delay in moving to restore the action to the trial calendar, and also failed to submit an affidavit from a physician attesting to the merits of this malpractice action (see, Canter v Mulnick, 60 NY2d 689). Accordingly, the Supreme Court acted properly when it refused to restore the action to the trial calendar. Mangano, P. J., Lawrence, Rosenblatt and O’Brien, JJ., concur.