DUPREE v. NEW YORK PRESBYTERIAN COLUMBIA UNIVERSITY IRVING MEDICAL CENTER (2026)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about July 24, 2025, which, upon plaintiff's counsel's failure to appear personally at a compliance conference as previously directed, dismissed the complaint pursuant to the Uniform Rules for Trial Cts (22 NYCRR) § 202.27(b), unanimously modified, on the law, to the extent of reinstating plaintiff's causes of action for negligence and negligent hiring, retention, and supervision, and remanding the matter for the imposition of an alternative sanction to dismissal, and otherwise affirmed, without costs.

Preliminarily, we note that the sua sponte dismissal order is not appealable as of right. “In general, a party who seeks to challenge a sua sponte order on appeal should first move to vacate the order to create a suitable appellate record and afford counsel the opportunity to be heard on the issues” (Klein v. New York City Tr. Auth., 240 AD3d 442, 444 [1st Dept 2025], citing CPLR 5701[a][3]). However, in light of the nature of the dismissal of the complaint and in the interests of judicial economy, we deem the notice of appeal to be a motion for leave to appeal the order and grant such leave (see id.).

Upon review of the order, we find that this matter should be remanded because, “[w]hile specific sanctions ․ are appropriate, the dismissal of the complaint, where plaintiff apparently bore no responsibility for her counsel's actions, is too drastic a remedy under these circumstances” (Alveranga–Duran v New Whitehall Apts., L.L.C., 40 AD3d 287, 289 [1st Dept 2007] [internal citation omitted]). On this record, the sanction of dismissal of the complaint in its entirety was too drastic when plaintiff was not responsible for her counsel's disregard of Supreme Court's compliance conference order directing him to appear personally instead of sending a per diem attorney to represent plaintiff, and where counsel had not been specifically warned that sending a per diem attorney would result in dismissal (see id.). We further note that counsel's failure to abide by the letter of the prior compliance conference order can be characterized as law office failure, which “may constitute a reasonable excuse for a default” (Goodwin v. New York City Hous. Auth., 78 AD3d 550, 551 [1st Dept 2010]).

Nevertheless, Supreme Court providently dismissed the medical malpractice claim pursuant to 22 NYCRR 202.27 since plaintiff had not submitted “expert medical opinion evidence” necessary to demonstrate that she had a meritorious cause of action (Menkes v Mount Sinai Health Sys., Inc., 247 AD3d 611, 612 [1st Dept 2026] [internal quotation marks omitted]). The same cannot be said for the negligence and negligent hiring, retention, and supervision claims since the merits of those claims, which were asserted in the complaint and the bills of particulars, “can be gleaned from the record” (Espinoza v. 373–381 Park Ave. S., LLC, 68 AD3d 532, 533 [1st Dept 2009]).

We have considered the remaining arguments and find them unavailing.