WARD v. NEW YORK CITY HEALTH HOSPITALS CORPORATION (2011)

Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 8, 2008, which denied plaintiffs' motion to vacate an order granting, on default, defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Defendant obtained a default judgment dismissing the action after plaintiffs failed to comply with a pre-condition to commencing action by failing to appear at a GML § 50-h hearing, after adjourning the hearing nine times. In seeking to vacate the dismissal, plaintiffs failed to demonstrate a meritorious defense (see Best v. City of New York, 97 A.D.2d 389 [1983], affd 61 N.Y.2d 847 [1984]; Wells v. City of New York, 254 A.D.2d 121 [1998], lv dismissed 92 N.Y.2d 1046 [1999], cert denied 527 U.S. 1012 [1999] ). They also failed to demonstrate the merits of their cause of action by not submitting an affidavit of merit by a medical professional (see Walker v. City of New York, 46 AD3d 278, 281-282 [2007]; Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 634 [2003] ).

Nor was plaintiffs' “conclusory and perfunctory” claim of law office failure a reasonable excuse for the default in view of the pattern of dilatory behavior they engaged in in prosecuting this matter (see Perez v. New York City Hous. Auth., 47 AD3d 505, 505-506 [2008]; Metral v. Bonifacio, 309 A.D.2d 724 [2003] ). There were, in addition to the 10 missed appointments for a General Municipal Law § 50-h hearing, and other things, three motions to file a late notice of claim. In the nearly 10 years since plaintiffs filed their late notice of claim, discovery has not even been commenced (see Metral, 309 A.D.2d at 724). Moreover, their proffered excuse is based not on the affirmant's personal knowledge but on the hearsay of a per diem attorney who claimed that a motion clerk advised him that no motion was pending in the case (see AWL Indus., Inc. v. QBE Ins. Corp., 65 AD3d 904, 906 [2009] ).