MENKES v. MOUNT SINAI HEALTH SYSTEM INC (2026)

Order, Supreme Court, New York County (John J. Kelley, J.) entered on or about December 20, 2024, which granted plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate an order, same court and Justice, entered on or about July 29, 2024, dismissing the complaint, without prejudice, pursuant to 22 NYCRR 202.27, vacated the July 29, 2024 order of dismissal, and reinstated the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed.

To restore a case that was dismissed due to a plaintiff's failure to attend a court conference pursuant to 22 NYCRR 202.27, the plaintiff must demonstrate a meritorious cause of action and establish a reasonable excuse for the failure to attend the conference (see Liparulo v. New York City Health & Hosps. Corp., 193 A.D.3d 593, 594, 143 N.Y.S.3d 183 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1088, 157 N.Y.S.3d 268, 178 N.E.3d 933 [2021] ).  In a medical malpractice case, “expert medical opinion evidence is required to demonstrate merit” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] [internal quotation marks omitted] ), and the expert submission must state an opinion in a nonconclusory fashion (see e.g. Gal–Ed v. 153rd St. Assoc., LLC, 73 A.D.3d 438, 438, 901 N.Y.S.2d 592 [1st Dept. 2010] ).

Here, plaintiff's expert submission fails to explain the standard of care from which defendants supposedly departed or how that departure caused plaintiff's injuries (see Chiaramonte v. Coppola, 81 A.D.3d 426, 426, 915 N.Y.S.2d 560 [1st Dept. 2011];  DeRosario v. New York City Health & Hosps. Corp., 22 A.D.3d 270, 271, 802 N.Y.S.2d 406 [1st Dept. 2005] ).  Rather, plaintiff's expert baldly opined that plaintiff suffered a loss of function of her femoral nerve as a result of the hip replacement surgery.  This was insufficient to establish a meritorious cause of action.

Plaintiff also failed to provide a reasonable excuse for her failure to join the scheduled virtual status conference after the court called her office and directed her to join the call (see Liparulo, 193 A.D.3d at 594, 143 N.Y.S.3d 183).  Plaintiff has not averred that she was unavailable.  Notably, she was able to communicate sufficiently to send a query back to the court asking the subject of the conference.  Although on appeal plaintiff contends that she was unavailable to join the July 29th status conference because she was in transit, there is no evidence in the record to support this contention.