Holbrook v. United Hospital Medical Center

In an action to recover damages for medical malpractice, the defendants Mordecai Dicker, M.D., Spectrum Emergency Care, Inc., and Cooper Emergency Services of New York, P. C., appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 8, 1996, which granted the plaintiffs motion, inter alia, to restore the action to the calendar. Ordered that the order is affirmed, with costs. Under the circumstances of this case, the court did not improvidently exercise its discretion in granting the plaintiff s motion to restore the case to the calendar. Because the action was not stricken from the calendar due to any default of the plaintiff, and the plaintiffs motion to restore the case to the calendar was made within one year after the case was stricken, the plaintiff did not need to submit an affidavit by a physician establishing a meritorious cause of action (see, Merrill Lynch, Pierce, Fenner & Smith v Tinter, 198 AD2d 113, 114; Butler v St. John’s Episcopal Hosp., 173 AD2d 755, 756; Balducci v Jason, 133 AD2d 436, 437; cf., Wulster v Rubinstein, 126 AD2d 545, 546). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.