Failure to prosecute (or to explain).

In this medical malpractice action, the First Department granted defendants' motion to dismiss for failure to prosecute, in Patterson v. St. Luke's-Roosevelt Hospital, which was decided on November 1, 2007.

Plaintiff did not respond to defendants' disclosure demands served at about the same time as their answer, and had otherwise been utterly inactive when, two years later, defendants served a CPLR 3216 notice. Service of the notice required that plaintiff do one of three things: (1) file a note of issue within 90 days; (2) move to vacate the notice or extend the 90-day period; or (3) oppose the motion to dismiss, demonstrating the action's merit and proferring an excuse for the delay sufficient to convince the court to forgive the failure to prosecute as a matter of its inherent discretion.

Plaintiff chose the third alternative, submitting materials responsive to plaintiff's discovery demands, but offering no excuse whatsoever for the inactivity and, with respect to the merits, merely promising to produce an expert's affidavit within 60 days of the motion's return day. The court found it was way too little and way too late.