MEHLER v. Nader Paksima, D.O., Defendant–Respondent. (2020)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about April 25, 2018, which granted defendant Nader Paksima, D.O.'s and defendants NYU Hospital for Joint Diseases and NYU Langone Medical Center's motions to dismiss the complaint unless plaintiff appeared for a deposition on or before May 8, 2018, and order, same court and Justice, entered on or about August 16, 2018, which denied plaintiff's motion to renew defendants' motions, unanimously affirmed, without costs.

The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff's history of noncompliance with court orders requiring her to appear for a further deposition (see CPLR 3126[3];  Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [1st Dept. 2010]).

Plaintiff contends that her behavior was neither willful nor contumacious.  However, by issuing a conditional order, the court “relieve[d] [itself] of the unrewarding inquiry into whether [plaintiff's] resistance was willful” (Board of Mgrs. of the 129 Lafayette St. Condominium v. 129 Lafayette St., LLC, 103 A.D.3d 511, 511, 959 N.Y.S.2d 430 [1st Dept. 2013] [internal quotation marks omitted] ).

On her motion to renew, plaintiff failed to submit new facts (CPLR 2221[e][2]), i.e., facts that existed but were unknown to her at the time defendants made their motions (see Matter of Naomi S. v. Steven E., 147 A.D.3d 568, 46 N.Y.S.3d 786 [1st Dept. 2017]).  Instead, she submitted facts that developed after the conditional order that decided the prior motions was issued.

Plaintiff's proper recourse was to seek to vacate the order on the ground of excusable default, pursuant to CPLR 5015(a)(1) (see Hutchinson Burger, Inc. v. Bradshaw, 149 A.D.3d 545, 545, 50 N.Y.S.3d 267 [1st Dept. 2017];  Country Wide Home Loans, Inc. v. Dunia, 138 A.D.3d 533, 28 N.Y.S.3d 319 [1st Dept. 2016]).  Even if we treat the motion as a motion to vacate (see CPLR 2001), we must deny it.  Although plaintiff demonstrated a reasonable excuse for her failure to comply with the conditional order, she failed to demonstrate a meritorious medical malpractice claim (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010]).