Byers v. Winthrop Univ. Hosp.

• Decision Date: 21 November 2012
• Citation: 100 A.D.3d 817,955 N.Y.S.2d 105,2012 N.Y. Slip Op. 07948
• Parties: Lisa–Anne BYERS, appellant, v. WINTHROP UNIVERSITY HOSPITAL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 817

955 N.Y.S.2d 105

2012 N.Y. Slip Op. 07948

Lisa–Anne BYERS, appellant,

v.WINTHROP UNIVERSITY HOSPITAL, et al., respondents.

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

Nov. 21, 2012.

H. Fitzmore Harris, P.C., New York, N.Y., for appellant.

Montfort, Healey, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for respondent Winthrop University Hospital.

Santangelo, Benvenuto & Slattery (James W. Tuffin, Melville, N.Y., of counsel),for respondents Nassau Surgical Associates and Frank A. Monteleone.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered June 29, 2011, which denied her motion, in effect, to vacate a judgment of the same court dated June 29, 2010, dismissing the complaint pursuant to CPLR 3216, to restore the action to the calendar, and to extend her time to file a note of issue.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

There is no merit to the plaintiff's contention that the judgment improperly dismissed the complaint pursuant to CPLR 3216 and, therefore, that her motion to vacate the judgment should have been granted. The certification order dated February 16, 2010, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216 ( see Fenner v. County of Nassau, 80 A.D.3d 555, 555, 914 N.Y.S.2d 653;Sicoli v. Sasson, 76 A.D.3d 1002, 1003, 908 N.Y.S.2d 100;Rodriguez v. Five Towns Nissan, 69 A.D.3d 833, 834, 892 N.Y.S.2d 768). Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( see Fenner v. County of Nassau, 80 A.D.3d at 555, 914 N.Y.S.2d 653;Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507). In light of the plaintiff's failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 ( see Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 783, 851 N.Y.S.2d 209;C & S Realty, Inc. v. Soloff, 22 A.D.3d 515, 516, 801 N.Y.S.2d 772;Vinikour v. Jamaica Hosp., 2 A.D.3d 518, 519, 767 N.Y.S.2d 873).

To vacate the judgment dismissing the complaint, the plaintiff was required to demonstrate a justifiable excuse for her failure to comply with the certification order and the existence of a potentially meritorious cause of action ( seeCPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Rodriguez v. Five Towns Nissan, 69 A.D.3d at 834, 892 N.Y.S.2d 768;Davis v. Cardiovascular Consultants of Long Is., P.C., 65 A.D.3d 1076, 1077, 886 N.Y.S.2d 61;Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d at 783, 851 N.Y.S.2d 209). Although the court has the discretion to accept law office failure as a justifiable excuse ( seeCPLR 2005), a claim of law office failure should be supported by a “detailed and credible” explanation of the default at issue ( see Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114;see also Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109), and conclusory and unsubstantiated claims of law office failure are insufficient ( see Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456;Matter of ELRAC, Inc. v. Holder, 31 A.D.3d 636, 636–637, 817 N.Y.S.2d 916;Matter of Denton v. City of Mount Vernon, 30 A.D.3d 600, 601, 817 N.Y.S.2d 140). In addition, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons ( see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353).

The undetailed and uncorroborated claim of law office failure set forth by the plaintiff's attorney, and the unsubstantiated claim that he left the country to assist his injured sister, did not amount to a justifiable excuse for the failure to comply with the certification order ( see Lugauer v. Forest City Ratner...