Generally, in a medical malpractice case in New York, it is the plaintiff’s duty to move the case forward. Thus, if the plaintiff fails to pursue his or her claims against the defendant, it may result in a dismissal. Recently, a New York court discussed when the dismissal of a medical malpractice claim for failure to prosecute is warranted in a case in which the plaintiff failed to comply with an order directing her to file a note of issue. If you were hurt by reckless or negligent medical care, it is in your best interest to speak to a Syracuse medical malpractice attorney to discuss what steps you must take to prove liability for your harm.
Facts and Procedural History of the Case
The facts of the case are sparse. It is reported, however, that the plaintiff filed a medical malpractice lawsuit against numerous defendants. Ultimately, the trial court issued an order directing the plaintiff to file a note of issue. The plaintiff did not comply with the court’s directive, however. As such, the defendants each individually filed motions to have the plaintiff’s claims against them dismissed, and the plaintiff filed a motion to extend the time to file a note of issue. The trial court granted the defendants’ motions, thereby terminating all of the plaintiff’s claims. The plaintiff then appealed.
Dismissal of a Case for Failure to File a Note of Issue
On appeal, the court reversed the trial court ruling and granted the defendant’s motion for additional time to file the note of issue. The court noted that while a plaintiff’s failure to abide by a court order directing her to file a note of issue may provide grounds for the dismissal of a complaint, a court is barred from dismissing an action based on the plaintiff’s failure to prosecute claims against the defendant unless certain statutory conditions are met. For example, under the applicable statute, a 90-day demand to file a note must be served on the plaintiff. Thus, either the defendant or the court must file a 90-day demand to file a note of issue before a court is permitted to dismiss a lawsuit for failure to prosecute.
In the subject case, the record was devoid of evidence that either the court or any of the defendants served a 90-day demand on the plaintiff as required under the rules of procedure. Additionally, although the court issued an order directing the plaintiff to file a note of issue, it was not considered a valid 90 demand as it did not advise the plaintiff that the failure to abide with the order could result in the dismissal of her claims. Therefore, as the plaintiff never received a 90-day demand, the appellate court found that the trial court erred in dismissing her claims.
Consult a Skillful Medical Malpractice Attorney
If you sustained damages due to a doctor’s negligent care, it is advisable to consult an attorney to discuss what damages you possibly could recover in a civil lawsuit. The skillful Syracuse medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the knowledge and experience needed to help you seek a favorable outcome, and we will advocate aggressively on your behalf. You can reach us via our form online or at 315-479-9000 to set up a meeting.