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Dismissal in Dental Malpractice Case

March 25, 2018

Senior Partner Jeffrey A. Shor assisted by Associate Michelle A. Frankel obtained a dismissal in a dental malpractice case filed in Kings County in 2011. The case, which involved treatment from 2009, remained stagnant for years and was administratively marked “disposed” after plaintiff failed to timely file a Note of Issue. In June 2016, plaintiff moved to restore the case and we opposed. The motion was “marked off” after plaintiff failed to appear for oral argument. In October 2017, plaintiff moved to restore a second time. We opposed and cross-moved to dismiss pursuant to CPLR 3404 (by which a case “marked off” and not restored within one year shall be deemed abandoned and dismissed) and Uniform Rules for NYS Trial Courts Section 206.10(g) (by which the Court may order dismissal if any party fails to appear for a scheduled conference). Importantly, unlike under CPLR 3216, neither law requires the service of a 90 day notice before dismissal can be sought. We argued that plaintiff’s excise that administrative error caused his failure to appear was unreasonable as it was plaintiff’s own motion and he waited an additional 1 1/2 years to file the second motion. Plaintiff also failed to provide an expert affidavit of merit. We emphasized the prejudice that would result if the matter were restored because records were destroyed and memories faded since 2009. After scolding plaintiff for not submitting the proper affidavits, Judge Spodek granted plaintiff an additional two months to do so. Our motion to dismiss was granted after plaintiff failed to do so.

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