Aronoff v. Dewitt Rehab. & Nursing Ctr.
| Docket Number | Index No. 805115/2022,MOTION SEQ. No. 002 |
| Decision Date | 25 October 2023 |
| Parties | BURTON ARONOFF, M.D., Plaintiff, v. DEWITT REHABILITATION AND NURSING CENTER, INC., UPPER EAST SIDE REHABILITATION AND NURSING CENTER, DANIEL KELIN, M.D., NORMAN MOORE, M.D., DR. FORD, JOHN/JANE DOE, and XYZ CORPORATION (fictitious names of persons and entities presently unknown), Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for JUDGMENT - DEFAULT.
In this action to recover damages for medical malpractice and nursing home negligence pursuant to the Public Health Law, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment on the issue of liability against the defendant Norman Moore, M.D. No party opposes the motion. The motion is granted, and an inquest on the issue of damages against Moore shall be conducted simultaneously with the trial of the action as against the remaining defendants.
Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof of service of the summons and complaint upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L Banks, 135 A.D.3d 621, 622 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649, 650 [2d Dept 2011]; see also Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 N.Y.3d 200, 202 [2013]).
The plaintiff commenced this action on April 1, 2022 by filing a summons and complaint (see CPLR 304[a]). The relevant affidavit of service here established that, on April 12 2022, the plaintiff served process upon Moore at his medical offices, located at 211 East 79th Street, New York, New York 10075, by (a) "by delivering a true copy hereof to and leaving with SCOTT MAIR ADMINISTRATIVE ASSISTANT a person of suitable age and discretion" and (b) thereafter mailing additional copies of the summons and complaint on April 13 2022 to that address in an envelope marked "personal and confidential" and not indicating that the contents were sent by an attorney or involved a lawsuit. Inasmuch as a process server's affidavit of service is prima facie evidence of proper service (see Johnson v Deas, 32 A.D.3d 253, 254 [1st Dept 2006]), and Moore did not oppose this motion, the plaintiff made a prima facie showing that Moore was properly served with process pursuant to CPLR 308(2).
The plaintiff filed the relevant affidavit of service on April 28, 2022 and, hence, service upon Moore was deemed "complete" within the meaning of CPLR 308(2) on May 9, 2022, which was the first business day 10 days after that filing (see CPLR 308[2]; General Construction Law §§ 20, 25-a). Moore thus had 30 days after May 9, 2022 (see CPLR 3012[c]), or until June 8, 2022, within which to answer, move with respect to the complaint, or otherwise appear in the action. The affirmation of the plaintiff's attorney established that Moore neither answered, moved, nor appeared in a timely manner on or before June 8, 2022, and that Moore thus was in default as of June 9, 2022. The plaintiff made the instant motion on April 29, 2023 (see CPLR 2211) and, thus, within one year after Moore's default The plaintiff's motion is thus timely (see CPLR 3215[c]).
(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id.; Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).
Generally, proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by a complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]). For purposes of CPLR 3215, a complaint verified by a party may be employed as proof of the facts constituting the claim (see CPLR 105[u]), but only where it sets forth sufficient, detailed evidentiary facts, rather than mere conclusions (see Celnick v Freitag, 242 A.D.2d 436, 437 [1st Dept 1997]). A verified complaint that is conclusory in nature and devoid of factual allegations constituting the claim is insufficient to demonstrate the requisite proof (see Cohen v Schupler, 51 A.D.3d 706, 707 [2d Dept 2008]; Luna v Luna, 263 A.D.2d 470 [2d Dept 1999]). In other words, the verified complaint must "set forth the facts constituting the alleged negligence" (Beaton v Transit Facility Corp., 14 A.D.3d 637, 637 [2d Dept 2005]). The complaint here is verified by the plaintiff's attorney and, hence, lacks any evidentiary value in connection with this motion for leave to enter a default judgment (see First Franklin Fin. Corp. v Alfau, 157 A.D.3d 863, 865 [2d Dept 2018]; DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 A.D.3d 760, 762 [2d Dept 2015]; Feffer v Malpeso, 210 A.D.2d 60, 61 [1st Dept 1994]).
Crucially in the context of a medical or dental malpractice action, an affidavit or affirmation of merit from an expert is required to support a CPLR 3215 motion, unless the matters alleged are within the ordinary experience and knowledge of a lay person (see Fiore v Galang, 64 N.Y.2d 999, 1000-1001 [1985]; Borek v Seidman, 2023 NY Slip Op 32617[U], *4-5, 2023 WL 4846035, *3 [Sup Ct, N.Y. County, Jul. 28, 2023] [Kelley, J.]; Bollinger v Mark Mordechai Liechtung, DMD, P.C., 2023 NY Slip Op 31537[U], *5, 2023 NY Mice LEXIS 2231, *6 [Sup Ct, N.Y. County, May 5, 2023] [Kelley, J.]; Checo v Mwando, 2022 NY Slip Op 31223[U], *4, 2022 NY Mise LEXIS 1865, *5 [Sup Ct, N.Y. County, Apr. 7, 2022] [Kelley, J.]; Garcia v Solomon, 2020 NY Mise LEXIS 17635, *2 [Sup Ct, Bronx County, Jun. 19, 2020]; Charles v Wolfson, 62 Misc.3d 1224[A], 2019 NY Slip Op 50251[U], *1, 2019 NY Mise LEXIS 866, *3 [Sup Ct, Bronx County, Mar 6, 2019]; see generally Burindaro v Grinberg, 57 A.D.3d 932, 933 [2d Dept 2008] ["plaintiff failed to demonstrate the existence of a meritorious cause of action" in medical malpractice case by failing to submit an expert affirmation]). Although a motion for leave to enter a default judgment may be granted against a health-care provider in a malpractice action where the plaintiff submits an expert affirmation or affidavit or a peer-review document (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 A.D.3d 768, 769-770 [2d Dept 2016]; Diaz v Perez, 113 A.D.3d 421, 421-422 [1st Dept 2014]), such a motion must be denied even where such an affidavit or affirmation is submitted, but is found to be insufficient (s...
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