Durr v. New York Community Hospital

• Decision Date: 07 August 2007
• Docket Number: 2006-04753.
• Citation: 840 N.Y.S.2d 430,2007 NY Slip Op 06345,43 A.D.3d 388
• Parties: HOWARD DURR, Respondent, v. NEW YORK COMMUNITY HOSPITAL et al., Defendants, and DAVID JOSEPH et al., Appellants.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 388

840 N.Y.S.2d 430

2007 NY Slip Op 06345

HOWARD DURR, Respondent, v. NEW YORK COMMUNITY HOSPITAL et al., Defendants, and DAVID JOSEPH et al., Appellants.

2006-04753.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided August 7, 2007.

In an action, inter alia, to recover damages for medical malpractice, the defendant David Joseph appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated February 15, 2006, as denied his motion pursuant to CPLR 3211 (a) (8) or, alternatively, pursuant to CPLR 3215 (c), to dismiss the complaint insofar as asserted against him, and the defendant Central Brooklyn Medical Group, P.C., appeals, as limited by its brief, from so much of the same order as 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 of the defendant Brooklyn Central Medical Group, P.C., and that branch of the motion of the defendant David Joseph which was to dismiss the complaint pursuant to CPLR 3215 (c) are granted.

The plaintiff commenced this medical malpractice action on April 13, 2004. The defendant Central Brooklyn Medical Group, P.C. (hereinafter Central Brooklyn), was served with process on April 21, 2004 and defaulted in appearing. The defendant David Joseph purportedly was served pursuant to CPLR 308 (2) by delivery on May 3, 2004 of the summons and complaint and certificate of merit to a person identified as an administrative assistant at the defendant New York Community Hospital at 2525 Kings Highway in Brooklyn, and by mailing of a copy thereof on May 11, 2004 to that defendant. The process server's affidavit was filed on May 13, 2004. Joseph also defaulted in appearing.

Since the plaintiff failed to move for leave to enter a default judgment within one year after Joseph and Central Brooklyn defaulted in answering the complaint (see CPLR 3215 [c]), in order to avoid dismissal of the complaint as abandoned as to those defendants, the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a meritorious cause of action against those defendants (see CPLR 5015 [a] [1]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]; Akler v Booth Mem. Med. Ctr., 257 AD2d 640 [1999]). Whether an excuse is reasonable is a determination committed to the sound discretion of the court (see Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]). Here, in view of the unsubstantiated excuse proffered by the plaintiff's...