Attorney Tichina L. Johnson successfully argued a Motion to Dismiss in Schenectady County Supreme Court before the Honorable Barry D. Kramer. This is the second time Ms. Johnson obtained dismissal of the matter.
The plaintiff, a 51 year old male, alleged that Ms. Johnson’s client, a local internist, failed to timely screen the plaintiff for prostate cancer, resulting in a delayed diagnosis of prostate cancer. At a previous oral argument, Judge Kramer issued a bench decision dismissing the case against Ms. Johnson’s client, due to the plaintiff’s failure to comply with the Court’s order that directed the plaintiff to file a Certificate of Merit. Thereafter, the plaintiff filed a new cause of action against Ms. Johnson’s client within six months of the prior dismissal.
Ms. Johnson moved for dismissal of the new action, arguing that the plaintiff could not take advantage of the six month, recommencement period, as the previous action was dismissed for a neglect to prosecute, was not timely commenced, and was dismissed on the merits. After oral argument, Judge Kramer again dismissed the case against Ms. Johnson’s client based upon the grounds that the prior action was dismissed for a neglect to prosecute and was dismissed on the merits.
