Berry v. Whitely

—In an action to recover damages for medical malpractice, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated October 30, 1997, which, inter alia, granted that branch of the plaintiffs motion which was to vacate the dismissal of the action pursuant to CPLR 3404, and to restore the action to the trial calendar. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied. Since the plaintiffs submissions consisted of unsworn medical reports (see, Miller v City of New York, 242 AD2d 370; cf., Grasso v Angerami, 79 NY2d 813, 814) and conclusory excuses [592] for the delay (see, Ziobro v Children’s Hosp., 242 AD2d 922; Gonzalez v First Natl. Supermarket, 232 AD2d 609), the Supreme Court erred in vacating the dismissal of the action and restoring the action to the trial calendar (see, Carter v City of New York, 231 AD2d 485). Contrary to the plaintiffs contentions, as 13 years have elapsed since the commission of the alleged malpractice, the defendant would be prejudiced if the action were restored to the trial calendar (see, McKenna v Solomon, 255 AD2d 496; Swedish v Bourie, 233 AD2d 495; Carter v City of New York, supra). S. Miller, J. P., Joy, H. Miller and Feuerstein, JJ., concur.