Walker v. City of New York

*279Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 20, 2006 (brought up for review pursuant to CPLR 5517 [b] by the appeal from an order, same court and Justice, entered February 7, 2006), which, upon reargument, granted plaintiff’s motion to “restore the action,” and denied defendants-appellants’ cross motion to dismiss the complaint, upon the condition that plaintiffs guardian appear for a hearing pursuant to General Municipal Law § 50-h within 30 days, modified, on the law, without costs, to deny plaintiffs motion to “restore the action” and grant defendants-appellants’ cross motion to dismiss unconditionally, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

Plaintiff was born in June 1991 at a hospital operated by defendant New York City Health and Hospitals Corporation (NYCHHC). On May 10, 1996, plaintiff, with leave of court, served a notice of claim asserting that, as a result of the medical malpractice of NYCHHC’s staff, plaintiff sustained personal injuries. On July 22, 1998, plaintiff commenced this medical malpractice action against defendants, and approximately one month later, the municipal defendants, appellants herein, answered the complaint and served demands for discovery and a bill of particulars.

In May 2000, plaintiffs permanent guardian sought the appointment of a guardian ad litem for plaintiff to protect his interests in this action. Supreme Court granted the motion to the extent of directing that a guardian ad litem would be appointed unless the permanent guardian appeared for a hearing pursuant to General Municipal Law § 50-h within 45 days of the entry of the order. While the permanent guardian did not comply with the order, it does not appear that a guardian ad litem was appointed.

On March 23, 2005, Supreme Court served on plaintiff’s *280counsel a CPLR 3216 demand requiring plaintiff to complete all outstanding disclosure and serve and file a note of issue within 90 days of the demand. The demand made plain that plaintiffs failure to comply with the demand could serve as a basis for dismissing the action. Plaintiff did not serve and file a note of issue within the 90-day period, and Supreme Court dismissed the action.

Approximately three months after the action was dismissed, plaintiff moved to “restore the action.” Plaintiffs counsel asserted that he failed to comply with the CPLR 3216 demand because his calendar clerk failed to note the deadline. Counsel argued that the action should be restored because defendants would not be prejudiced if the motion was granted. Plaintiff submitted no evidence regarding the merits of his claims. In addition to opposing plaintiffs motion, defendants cross-moved to dismiss the complaint. Defendants argued, among other things, that plaintiff provided neither a reasonable excuse for his failure to comply with the CPLR 3216 demand nor a medical expert’s affidavit evincing the merits of his claims. After receiving defendants’ cross motion, plaintiff served a bill of particulars and a conclusory response to defendants’ discovery demands, which had been served over seven years earlier.

Supreme Court summarily granted plaintiffs motion. The court subsequently granted defendants’ motion for reargument to the extent of dismissing the action unless the permanent guardian appeared for a General Municipal Law § 50-h hearing.1 This appeal by defendants ensued.

Plaintiffs motion to “restore the action” was in fact a motion to vacate the dismissal of the action. A motion to restore an action is necessary where a case is dismissed under CPLR 3404, the post-note of issue laxness dismissal statute (see Siegel, NY Prac § 376, at 632 [4th ed]). Since no note of issue was ever filed, Supreme Court dismissed the action under CPLR 3216 (see Johnson v Minskoff & Sons, 287 AD2d 233, 234 [2001], citing Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001], lv dismissed 96 NY2d 937 [2001]).

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand and a meritorious cause of action (Lopez, 282 AD2d at 197; see Rijo v McLaughlin, 309 AD2d 716, 717 [2003]). Here, the conclusory and perfunctory claim of law office failure as*281serted by plaintiffs counsel does not constitute a reasonable excuse. The calender clerk of plaintiffs counsel’s law firm merely averred that he obtained a copy of the CPLR 3216 demand and failed, due to “clerical error,” to file the note of issue. Neither this affidavit nor any other evidence demonstrated a reasonable excuse for plaintiffs “extensive delays in prosecuting the action both before and after [the] demand” (Garcia v Del Pacifico, 299 AD2d 188 [2002]; see Gavillan v City of New York, 11 AD3d 217 [2004] [alleged excuse for failure to comply with CPLR 3216 demand—eviction proceedings pending against plaintiffs counsel—did not explain the pattern of delay over the course of the litigation]; Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 786 [2003] [pattern of delay relevant to determination of whether plaintiffs excuse for her default was reasonable]; see also Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124 [2007]).

Notably, the permanent guardian repeatedly failed to attend scheduled hearings under General Municipal Law § 50-h; plaintiffs counsel failed to ensure that a guardian ad litem was appointed for plaintiff; and plaintiffs counsel took seven years to respond to demands for a bill of particulars and discovery. In light of the persistent and lengthy delay of plaintiffs counsel and the permanent guardian in prosecuting this case, neither the perfunctory claim of law office failure, which only attempted to explain plaintiffs failure to comply with the 90-day demand, nor the portion of delay attributable to the permanent guardian’s childcare and work responsibilities, nor both, is sufficient to constitute a reasonable excuse (see generally Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005] [“Supreme Court was of course correct in thinking it undesirable to punish plaintiffs for the failures of their counsel. But what is undesirable is sometimes also necessary, and it is often necessary ... to hold parties responsible for their lawyers’ failure to meet deadlines”]).

We also note that, under the particular facts of this case, plaintiff failed to demonstrate that his action has merit. Where, as here, the gravamen of the dismissed action is medical malpractice, a plaintiff must submit the affidavit of a medical expert to demonstrate the merits of the action (Abelard v Interfaith Med. Ctr., 202 AD2d 615 [1994]; see Marks v Kingsbrook Radiology, 267 AD2d 151 [1999], citing Mosberg v Elahi, 80 NY2d 941 [1992]; see also Burke v Klein, 269 AD2d 348 [2000]). Plaintiff did not submit such an affidavit in support of his motion to “restore the action.” Therefore, the papers before Supreme *282Court were insufficient as a matter of law to demonstrate the merits of plaintiffs claims.

To avoid the consequences of this failure, plaintiff asserts that we should take judicial notice of the averments in a physician’s affirmation, originally submitted by plaintiff in support of his 1995 motion for leave to serve a late notice of claim, that plaintiff included in papers filed in this Court in opposition to a motion by defendants for an enlargement of time to perfect this appeal. “Appellate review is limited to the record made on the motion and, absent matters that may be judicially noticed, new facts may not be injected at the appellate level” (Regina v Friedman, 272 AD2d 461, 462 [2000]; see e.g. Broida v Bancroft, 103 AD2d 88, 93 [1984]). While a court may take judicial notice of its records and files, it may “not take judicial notice of a ‘fact’ which [i]s controverted” (Weinberg v Hillbrae Bldrs., 58 AD2d 546, 546 [1977] [court could not take judicial notice of process server’s affidavit, which was in court file, where issue raised regarding whether service of summons was properly effected]). Thus, the mere presence of a document in a court file does not mean that judicial notice properly can be taken of any factual material asserted in the document (Ptasznik v Schultz, 247 AD2d 197 [1998]). As observed by the Second Department in Ptasznik (247 AD2d at 199): “Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion.”

“A court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof’ (Carter v Metro N. Assoc., 255 AD2d 251, 251 [1998] [internal quotation marks omitted]; see Prince, Richardson on Evidence § 2-201 [Farrell 11th ed]). Of course, the opinions of a physician regarding the efficacy of the medical treatment provided by defendants to plaintiff are not facts of common and general knowledge that are well established and authoritatively settled. Moreover, even if we could take judicial notice of the opinions of plaintiffs expert, we are not required to do so (see Prince, Richardson on Evidence § 2-202, at 30, quoting Hunter v New York, Ontario & W. R.R. Co., 116 NY 615, 621 [1889] [“ ‘(c)ourts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved, and the apparent justice of the case’ ”]). We should not be encouraging sloppy *283practice by taking judicial notice of factual matters that a party unaccountably fails to supply before the nisi prius court (see Sutton v Lavezzo, 160 AD2d 292, 293 [1990] [“Plaintiffs . . . urge that a statement of the merits by the proper party was submitted in a related case . . . and judicial notice should have been taken of this statement. In moving to vacate a default, the burden is on the movant, and not the court, to produce admissible evidence showing merit to the underlying claim”]).2 Concur—Tom, J.E, Friedman, Gonzalez and McGuire, JJ.