Billings v. Rao
| Decision Date | 01 April 1991 |
| Citation | 172 A.D.2d 472,567 N.Y.S.2d 827 |
| Parties | Charles F. BILLINGS, et al., Appellants, v. K. Sudhaker RAO, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John R. Grant, Staten Island, for appellants.
Amabile & Erman, P.C., Brooklyn (Edward F. Humphries, of counsel), for respondent K. Sudhaker Rao.
Costello & Shea, New York City (Scott M. Karpel, of counsel), for respondent St. Vincent's Medical Center of Richmond.
Before THOMPSON, J.P., and KUNZEMAN, EIBER and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Richmond County (Leone, J.), entered August 10, 1989, which granted the defendants' respective motions to dismiss the complaint for failure to timely file a Notice of Medical Malpractice Action, upon the plaintiffs' default in responding to the motions, and (2) from an order of the same court, dated October 11, 1989, which denied their motion to vacate their default in responding to the defendants' respective motions to dismiss the complaint.
ORDERED that the defendants are awarded one bill of costs.
It is well established that a party seeking to be relieved of his or her default must establish both a reasonable excuse for the default and merit (see, Pannullo v. Staro, 139 A.D.2d 636, 527 N.Y.S.2d 275; see also, Scopino v. St. Joseph's Hosp., 142 A.D.2d 569, 530 N.Y.S.2d 989). The sufficiency of the excuse for the default, as well as of the affidavit establishing the meritorious case, is ordinarily left to the discretion of the Supreme Court (see, Fidelity & Deposit Co. of M. v. Andersen & Co., 60 N.Y.2d 693, 468 N.Y.S.2d 464, 455 N.E.2d 1259; Perellie v. Crimson's Rest., 108 A.D.2d 903, 485 N.Y.S.2d 789; De Vito v. Marine Midland Bank, 100 A.D.2d 530, 473 N.Y.S.2d 218). In the matter at bar, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion to vacate their default, because the physician's affidavit submitted to establish the merits of their claim did not indicate, in any way, that the defendants departed from accepted medical standards or that any such departure was a proximate cause of any injuries to the injured plaintiff....
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