AKLER v. Main Street Associates, P.C., Appellant.

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

Gilda AKLER, et al., Respondents, v. BOOTH MEMORIAL MEDICAL CENTER, et al., Defendants, Main Street Associates, P.C., Appellant.

Decided: January 25, 1999

GUY JAMES MANGANO, P.J., DANIEL W. JOY, WILLIAM D. FRIEDMANN and GLORIA GOLDSTEIN, JJ. Ellenberg & Hutson, LLP, New York, N.Y. (James H. Irish of counsel), for appellant.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Main Street Ob/Gyn Associates, P.C., appeals from an order of the Supreme Court, Queens County (Milano, J.), dated January 29, 1998, which denied its motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Main Street Ob/Gyn Associates, P.C., and the action against the remaining defendants is severed.

 The defendant Main Street Ob/Gyn Associates, P.C., moved to dismiss the complaint insofar as asserted against it on the ground that the plaintiffs failed to enter a judgment against it upon its default in answering or appearing within one year of the default pursuant to CPLR 3215.   To avoid dismissal of a complaint under such circumstances a plaintiff “must offer a reasonable excuse for the delay and demonstrate the merits of the complaint” (Richards v. Lewis, 243 A.D.2d 615, 616, 663 N.Y.S.2d 233;  see, First Nationwide Bank v. Pretel, 240 A.D.2d 629, 659 N.Y.S.2d 291;  Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83).   In opposition to the appellant's motion, the plaintiffs failed to submit any evidence demonstrating the merits of their action (see, Mosberg v. Elahi, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353;  cf., Hoffmann v. Salitan, 203 A.D.2d 91, 92, 609 N.Y.S.2d 616).

MEMORANDUM BY THE COURT.

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