Opinion
October 14, 1997
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order is reversed, on the law, with costs, the defendants' motion is granted, and the plaintiff's cross motion is denied.
A case in the Supreme Court which is stricken from the calendar and not restored within one year thereafter, "shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute" (CPLR 3404). In the instant case, the Supreme Court improvidently exercised its discretion in vacating the judgment which dismissed the instant complaint pursuant to CPLR 3404.
It is well settled that in order to vacate a dismissal pursuant to CPLR 3404, the plaintiff must establish the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the non-moving party if the case is restored to the calendar ( see, Robinson v. New York City Tr. Auth., 203 A.D.2d 351; Hatcher v Cassanova, 180 A.D.2d 664; Hagelman v. Sheridan, 150 A.D.2d 430). In a medical malpractice action, the affidavit of merit must be by a physician or other qualified expert, and state with specificity the expert's observations as to procedures or treatments performed and the alleged deviations from the acceptable standards of medical care ( see, Nepomniaschi v. Goldstein, 182 A.D.2d 743; Wulster v. Rubinstein, 126 A.D.2d 545; Friedberg v. Bay Ridge Orthopedic Assocs., 122 A.D.2d 194). In the instant case, the plaintiff failed to satisfy these requirements.
Miller, J.P., Thompson, Joy and Luciano, JJ., concur.