Alexander Kogan, et al., respondents, v. Igor Ryndin, etc., et al., appellants, et al., defendants. (2026)

Submitted—February 9, 2026

DECISION & ORDER

G/

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants Igor Ryndin, Jonathan Michael Mishoe, M. Victor McLaughlin, Jr., Mount Sinai Beth Israel Hospital, and Mount Sinai Health System, Inc., appeal from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated April 26, 2024.  The order granted the plaintiffs' motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated July 21, 2023, granting that branch of the motion of the defendants Igor Ryndin, Jonathan Michael Mishoe, M. Victor McLaughlin, Jr., Mount Sinai Beth Israel Hospital, and Mount Sinai Health System, Inc., which was to dismiss the complaint insofar as asserted against them for failure to comply with CPLR 3012–a upon the plaintiffs' failure to appear on the return date of that motion, and to restore the action to active status.

ORDERED that the order dated April 26, 2024, is reversed, on the law, with costs, and the plaintiffs' motion pursuant to CPLR 5015(a)(1) to vacate the order dated July 21, 2023, and to restore the action to active status is denied.

In August 2022, the plaintiff Alexander Kogan, and his wife suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice against Igor Ryndin, Jonathan Michael Mishoe, M. Victor McLaughlin, Jr., Mount Sinai Beth Israel Hospital, and Mount Sinai Health System, Inc. (hereinafter collectively the defendants), among others.  In May 2023, the defendants moved, among other things, to dismiss the complaint insofar as asserted against them due to the plaintiffs' failure to provide a certificate of merit pursuant to CPLR 3012–a.  By order dated July 21, 2023, the Supreme Court granted that branch of the defendants' motion upon the plaintiffs' default in appearing on the return date of the motion.

In March 2024, the plaintiffs moved pursuant to CPLR 5015(a)(1) to vacate the order dated July 21, 2023, and to restore the action to the active calendar.  The defendants opposed the motion.  In an order dated April 26, 2024, the Supreme Court granted the motion.  The defendants appeal.

“A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious motion or opposition to the motion” (New Hope Missionary Baptist Church, Inc. v 466 Lafayette, Ltd., 230 AD3d 510, 511 [internal quotation marks omitted];  see CPLR 5015[a][1] ).  “ ‘[W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse’ ” (Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d 784, 786, quoting Maruf v. E.B. Mgt. Props., LLC, 181 AD3d 670, 671–672).  “[A] conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse” (GITSIT Solutions, LLC v. Azcuy, 242 AD3d 956, 958 [internal quotation marks omitted];  see Zlobec v. Bank of N.Y. Mellon, 241 AD3d 606, 609).

Here, the plaintiffs' claim of law office failure did not constitute a reasonable excuse for their default.  The plaintiffs' conclusory and unsubstantiated assertions that the default was due to an “inadvertent calendaring error” caused by “miscommunication” were insufficient to establish a reasonable excuse for the default (see Crudele v. Price, 218 AD3d 534, 535–536;  Deep v. City of New York, 183 AD3d 586, 587).

Furthermore, the plaintiffs' attorney's conclusory assertion that she could not appear on the return date of the motion because she had been unable to obtain an expert report was insufficient to establish a reasonable excuse for the plaintiffs' default (see Deep v. City of New York, 183 AD3d at 588;  Harrison v. Toyloy, 174 AD3d 579, 580).

As the plaintiffs failed to establish a reasonable excuse for their default, it is unnecessary to determine whether they demonstrated a potentially meritorious opposition to the motion (see Deep v. City of New York, 183 AD3d at 588;  Servilus v. Walcott, 148 AD3d 743, 744).

Accordingly, the Supreme Court should have denied the plaintiffs' motion pursuant to CPLR 5015(a)(1) to vacate the order dated July 21, 2023, and to restore the action to active status.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court