The following papers read on this motion:

Notice of Motion....................................................1

Answering Papers..................................................2

Reply...................................................................3

Defendant's Memorandum of Law...............................4

Plaintiff's Memorandum of Law..................................5

Defendant's Reply Memorandum.................................6

Defendant (the "Hospital") moves, inter alia, for an order of this Court, pursuant to CPLR 3404, dismissing the complaint in its entirety, with prejudice, on the grounds that any further proceedings [*2]are barred by CPLR 3404 and the doctrine of laches. The motion is granted.

Plaintiff, an employee of defendant, brings this "whistle-blower" action pursuant to Sections 740 and 741 of the New York State Labor Law. On August 18, 2004, she filed a Verified Complaint in the Supreme Court, Kings County, naming the Hospital as well as four individual defendants. On November 2, 2004, defendants filed a motion for change of venue and to dismiss. On February 4, 2005, this Court granted defendants' motion, transferring the action to Nassau County and dismissing plaintiff's New York Labor Law §741 claim and all claims against the individual defendants.

On January 30, 2006, plaintiff served a Note of Issue certifying that discovery was complete, subject to motions in limine, and demanded a trial by jury of all issues. Plaintiff thereafter moved for an order granting summary judgment against the Hospital on the issue of liability and seeking reinstatement of her position, with attendant title, salary and lost benefits. The Hospital cross moved for summary judgment and for an order dismissing the complaint. On June 20, 2006, this Court issued an Order and Judgment denying plaintiff's motion and granting the Hospital's motion for summary judgment dismissing the complaint. Notably, after a June 1, 2006, pre-trial conference, this post-note of issue action was marked off and struck from this Court's DCM Trial Part calender as "Disposed/Result of a Motion." On August 3, 2006, plaintiff served a Notice of Appeal of the Order and Judgment to the Appellate Division.

Subsequently, on April 15, 2008, the Appellate Division modified this Court's June 20th Order and Judgment by deleting the portion granting the Hospital's cross motion for summary judgment dismissing the complaint and substituting a provision denying the cross motion and, as so modified, affirming the denial of plaintiff's motion for summary judgment. On April 18, 2008, plaintiff served the Appellate Division's Decision and Order with Notice of Entry. On May 23, 2008, the Hospital filed with the Appellate Division a notice of motion for reargument or, in the alternative, for resettlement and clarification of the Appellate Division's April 15th Decision and Order. On July 30, 2008, the Appellate Division denied the Hospital's motion.

Approximately seventeen months later, on December 11, 2009, defendant's counsel received from plaintiff's counsel a proposed Stipulation to Restore to Calender, asking defendant's counsel to agree that the delay in the proceedings was due to the "failure of court personnel to restore this case to the Court's calendar" and asserting that "it was up to the Judge to [restore her case]." By letter dated December 24, 2009, defendant advised plaintiff that it would not agree to such a stipulation as it was not accurate and that it was improper to blame the Court for the delay in the proceedings, as it had been incumbent upon plaintiff — not court personnel — to make a prompt inquiry with the Court with respect to any further proceedings. The Hospital also advised plaintiff that because she had abandoned her claims by failing to take any action for over almost seventeen months, the Hospital would oppose any further proceedings on the grounds of plaintiff's neglect to prosecute and laches. Subsequently, by letter dated April 21, 2010, plaintiff advised defendant that she "served the [April 15th Appellate Division Decision and Order] on the Motion Support office of Nassau County Supreme Court today in person and obtained a trial calender date, to wit: May 27, 2010."

Inasmuch as this case was marked "Disposed/Result of a Motion" on June 26, 2006, for the purposes [*3]of the instant motion, this action was marked off and was stricken from the trial calender of this Court within the meaning of CPLR 3404 (Casavecchia v. Mizrahi, 62 AD3d 741 [2d Dept. 2009]; Lopez v. Imperial Delivery Serv., 282 AD2d 190 [2d Dept. 2001]).

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned (Sanchez v. Denkberg, 284 AD2d 446 [2d Dept. 2001]). The statute "was adopted for the purpose of getting rid of cases that are actually dead by striking them from the calendars," and creates only a presumption of abandonment which is negated by proof of litigation "actually in progress."

Accordingly, in opposing defendant's instant motion, plaintiff, in order to have this matter restored to the active trial calender, is required to demonstrate a reasonable excuse for the delay in the prosecution of the claims asserted in the action, a meritorious cause of action, lack of intent to abandon the action and a lack of prejudice to defendant (Swanson v. Eichler, 68 AD3d 975 [2d Dept. 2009]; Williams v. D'Angelo, 24 AD3d 538 [2d Dept. 2005]; Long-Waithe v. Kings Apparel Inc., 10 AD3d 413, 414 [2d Dept. 2004]). Plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored (M. Parisi & Son Constr. Co. Inc. v. Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820 [2d Dept. 2007]; Krichmar v. Queens Med. Imaging, P.C., 26 AD3d 417, 419 [2d Dept. 2006]). Notably, plaintiff has neither served nor filed a motion to restore the case to the calendar nor any other pleading to restore the note of issue or to certify her readiness for trial. Additionally, she has failed to demonstrate that she satisfied any of the four components necessary to restore the action to the trial calendar (M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Karwowski v. Wonder Works Constr., 73 AD3d 1133 [2d Dept. 2010]; Leinas v. Long Is. Jewish Med. Ctr., 72 AD3d 905 [2d Dept. 2010]).

Plaintiff has failed to establish that she has a meritorious cause of action. This is an action alleging violations of, inter alia, New York State Labor Law §740, the "Whistleblower Statute," for the whistleblowing of activities in violations involving unsanitary or unsterilized instrumentation used in the Operating Room at North Shore University Hospital at Plainview, which allegedly endangered the health, safety and welfare of patients and the general public, and the reporting thereof to hospital administration and retaliation, therefore, by defendant in the nature of termination of plaintiff. It is undisputed in this case that the New York State Department of Health ("DOH") investigated plaintiff's claims and advised plaintiff and her counsel that its "investigation did not reveal any violations of the regulations" that she would need to prove to establish a claim under Labor Law §740. There is no evidence in the record to dispute the DOH's findings, as plaintiff conducted no discovery on the DOH and now contends that discovery is closed and the case is trial ready.

The Appellate Division, after viewing the record in the light most favorable to plaintiff, found that plaintiff had "failed to adduce sufficient evidence that the defendant's activities constituted a violation of a law or regulation, and thus, the Supreme Court correctly denied her summary judgment motion for failure to demonstrate her prima facie entitlement to judgment as a matter of law." The Appellate Division also found that based on the record the Hospital had established prima facie "its statutory defense that plaintiff's termination was predicated upon grounds other than the employee's exercise of any rights protected by [section 740]." While the Appellate Division gave plaintiff a second chance to establish her case, more than two years later, plaintiff still fails, in opposing this motion, to proffer any evidence to establish that her claim under Labor Law §740 has [*4]any merit. Instead plaintiff provides this Court with a copy of her Verified Complaint and plaintiff's entire transcript of her deposition, which this Court already reviewed and found to lack merit when this Court denied plaintiff's motion for summary judgment and granted the Hospital summary judgment. That plaintiff submits her brief and the entire record on appeal, asking the Court to find merit to her claims, without citing to any particular authority, is also insufficient.

Further, plaintiff fails to provide the certificate of readiness and accompanying affidavit required by 22 NYCRR §202.21(f) showing any merit to this action. She also fails to proffer any evidence to rebut the DOH's determination (admissible under the Public Health Law §10[2] as "presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places") that there was no actual violation of any applicable law or rule. Her reference to her apparent effort to secure an expert witness whose identity she had not disclosed to defendant, although she was required to do so pursuant to CPLR 3101(d), is also insufficient. Thus, it is clear that plaintiff simply cannot establish that she has a meritorious cause of action, which she is required to do in order to have this case restored to the calendar (Friedberg v. Bay Ridge Orthopedic Assoc., P.C., 122 AD2d 194 [2d Dept. 1986]).

Plaintiff has also failed to offer and, therefore, has failed to establish any excusable reason for her lengthy delay. It is undisputed that plaintiff took no action for seventeen months after the resolution of her appeal and that she waited for more than two years after the Appellate Division's Decision and Order before seeking further proceedings from the Court. Plaintiff's proffered excuse for her counsel's delay is her counsel's contention that she reasonably believed that, the Appellate Division's order and record would be sent to the trial court sua sponte and that therefore, she patiently awaited the restoration of this action. This, however, does not excuse the inaction of plaintiff's counsel because it was incumbent upon her to make a prompt inquiry in July 2008, and certainly before 2010, as to the status of this matter and whether this Court had jurisdiction for further proceedings. Plaintiff admits that she made no effort to communicate with the Court for more than one year after she received the Appellate Division's July 30, 2008, order denying defendant's notice of motion for reargument. Even when she purportedly contacted the Clerk on August 11, 2009, she decided not to " bother' the judge and to await restoration of the case to the calendar, which she believed would be done by the judge and/or the Court. She waited another two months."

While plaintiff's counsel points to her husband's medical condition as an additional excuse for her delay, this reason, too, while unfortunate, provides plaintiff no relief. Initially, while plaintiff's counsel states that her husband's medical condition did not arise until October 2008, she offers no explanation for her failure to contact the Court with respect to the status of further proceedings during the intervening three months after the Appellate Division's July 30, 2008, decision. Moreover, in her submission, counsel for plaintiff admits that her husband's illness was not continuous but rather that his condition was in remission and there were numerous periods when he was not ill and had returned to work. Such an intermittent medical condition cannot excuse plaintiff's nearly two-year continuous delay in seeking further proceedings (Bornsetein v. Clearview Props., Inc., 68 AD3d 1033, 1034 [2d Dept. 2009]; Knight v. City of New York, 193 AD2d 720, 722 [2d Dept. 1993]).

Plaintiff has also failed to establish that defendant would not be prejudiced as a result of her delay [*5]and inactivity. Given plaintiff's two-year delay in seeking further proceedings, the potential absence of witnesses and records would clearly be prejudicial to the Hospital (Arroyo v. Bd. of Ed. of New York, 25 Misc 3d 1229[A] [Sup. Ct. Kings Co., 2009]; Vickery v. Village of Saugerties, 106 AD2d 721, 723 [3d Dept. 1984] aff'd 64 NY2d 1161 [1985]). In particular, it is undisputed that the DOH investigator, who handled plaintiff's claim and found that there were no violations of any law, rule or regulation either as alleged by plaintiff's counsel or otherwise, is no longer employed by that agency. Clearly, the Hospital would be prejudiced by further proceedings in this action. Further, as this case is one in which the witnesses' memories would be critical to the defenses of the Hospital and the testimony of many potential witnesses has not been preserved, restoration of this abandoned action would be prejudicial to defendant (Krantz v. Scholtz, 201 AD2d 784, 785 [3d Dept. 1994]; Gray v. Sandoz Pharms. Div. of Sandoz, Inc., 158 AD2d 583, 584 [2d Dept. 1990]). Plaintiff's efforts to locate an expert witness for trial, where she previously stated to both the Hospital and to this Court that medical reports were not required in her case nor would she rely upon any experts or designate any, is prejudicial to defendant in this case. The untimely disclosure of an expert witness, as there had never been any indication this case would involve expert testimony, is prejudicial to defendant (D'Ecclesiis v. Manna, 289 AD2d 522 [2d Dept. 2001]).

Having admitted that she did not communicate with defendant for eighteen months after her appeal concluded and that she did not give notice or otherwise advise defendant of her purported oral communications with the Clerk during that period is sufficient evidence demonstrating an intent to abandon this action (Jeffs v. Janessa, Inc., 226 AD2d 504 [2d Dept. 1996]; Bohlman v. Lorenzen, 208 AD2d 582 [2d Dept. 1994]; Roland v. Napolitano, 209 AD2d 501 [2d Dept. 1994]). This is particularly warranted where plaintiff concedes that she did not communicate with the Court in writing until April 21, 2010, close to two years after the appeal concluded. As she has acknowledged that she advised neither the Court nor defendant of anything that would demonstrate that this litigation was actually in progress at any time for close to two years after her appeal concluded, plaintiff has failed to establish a lack of intent to abandon this case.

Therefore, defendant's motion for an order of this Court, pursuant to CPLR 3404, dismissing the complaint in its entirety, with prejudice, on the grounds that any further proceedings are barred by CPLR 3404 is granted. The complaint is dismissed. All applications not specifically addressed herein are deemed denied.

This decision constitutes the order and judgment of the court.

Dated:November 30, 2010 THOMAS P. PHELAN

J.S.C.

[*6]Attorneys of Record

Pamela A. Elisofon, Esq.

Attorney for Plaintiff

26 Court Street, Suite 2515

Brooklyn, NY 11242

Epstein Becker & Green, P.C.

Attn: Kevin R. Brady, Esq.

Attorneys for Defendant

250 Park Avenue

New York, NY 10177-1211