GOURDET v. HERSHFELD

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Supreme Court, Appellate Division, Second Department, New York.

Lynee A. Faust GOURDET, Respondent, v. Alvin T. HERSHFELD, etc., et al., Appellants.

Decided: November 27, 2000

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. O'Leary & O'Leary, Jamaica, N.Y. (Joseph D. Furlong of counsel), for appellant Alvin T. Hershfeld. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Steven J. Ahmuty, Jr., and Suzanne M. Behan of counsel), for appellant Long Island Jewish Medical Center. Leonard Zack and Associates, New York, N.Y. (David Spiegelman of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants separately appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated April 24, 2000, which granted the plaintiff's motion, in effect, to vacate an order of the same court, dated December 10, 1999, granting the defendants' respective motions to dismiss the complaint pursuant to CPLR 3216, upon the plaintiff's default in opposing the motions.

ORDERED that the order is reversed, on the law, with one bill of costs, the plaintiff's motion is denied, and the order dated December 10, 1999, is reinstated.

In response to a 90-day demand pursuant to CPLR 3216, the plaintiff failed to timely file a note of issue.   Thereafter, the defendants separately moved to dismiss the complaint.   The Supreme Court granted the motions upon the plaintiff's default in opposing them.   The plaintiff then moved to vacate her default and for leave to file a note of issue.   The Supreme Court granted the motion and the defendants appeal.

 The Supreme Court improperly granted the plaintiff's motion.   In order to vacate her default, the plaintiff was required to demonstrate a reasonable excuse for the default and a meritorious cause of action (see, CPLR 5015[a];  Alliance Prop. Mgt. & Dev. v. Andrews Ave. Equities, 70 N.Y.2d 831, 523 N.Y.S.2d 441, 517 N.E.2d 1327;  Martinez v. Otis El. Co., 213 A.D.2d 523, 624 N.Y.S.2d 43).   The plaintiff's excuse for failing to oppose the defendants' motions to dismiss can only be classified as law office failure.   Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see, CPLR 2005;  Rosado v. Economy El. Co., 236 A.D.2d 598, 654 N.Y.S.2d 656;  Miles v. Blue Label Trucking, 232 A.D.2d 382, 648 N.Y.S.2d 138), the conclusory affirmation of the plaintiff's counsel was insufficient to establish an excusable default (see, Eretz Funding v. Shalosh Assocs., 266 A.D.2d 184, 697 N.Y.S.2d 335;  Van Kleeck v. Horton Mem. Hosp., 251 A.D.2d 494, 673 N.Y.S.2d 1021;  Swedish v. Bourie, 233 A.D.2d 495, 650 N.Y.S.2d 765;  General Elec. Capital Auto Lease v. Terzi, 232 A.D.2d 449, 648 N.Y.S.2d 167).

 Additionally, the plaintiff failed to establish that she has a meritorious cause of action.   Because this is a medical malpractice action, the plaintiff was required to establish the merits of her action by submitting an expert's affidavit (see, Tolliver v. County of Nassau, 231 A.D.2d 708, 647 N.Y.S.2d 834;  Murdock v. Center for Special Surgery, 199 A.D.2d 482, 483, 605 N.Y.S.2d 387).   The plaintiff submitted the unsigned affidavit of an unidentified physician in support of her motion.   Contrary to her claim, absent the submission of an unredacted physician's affidavit to the Supreme Court for in camera inspection, she is unable to establish the merits of the action (see, Fuller v. Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831;  see also, Tolliver v. County of Nassau, supra).   Moreover, the affidavit she did submit was conclusory (see, Nepomniaschi v. Goldstein, 182 A.D.2d 743, 582 N.Y.S.2d 761).

MEMORANDUM BY THE COURT.

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