Gallery v. Messerschmitt

• Decision Date: 21 June 2017
• Citation: 54 N.Y.S.3d 313 (Mem),151 A.D.3d 940
• Parties: Donna GALLERY, appellant, v. Patrick MESSERSCHMITT, M.D., et al., respondents.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 940

54 N.Y.S.3d 313 (Mem)

Donna GALLERY, appellant,

v.Patrick MESSERSCHMITT, M.D., et al., respondents.

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

June 21, 2017.

Pamela Gabiger, Poughkeepsie, NY, for appellant.

Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP, Fishkill, NY (Wayne M. Rubin of counsel), for respondents Patrick Messerschmitt, M.D., and Orthopedic Associates of Dutchess County.

Heidell Pittoni Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner and Daryl Paxson of counsel), for respondent Vassar Brothers Medical Center.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Rosa, J.), dated September 20, 2015, as denied that branch of her motion which was to vacate a judgment of the same court dated June 2, 2015, which, upon the failure of the plaintiff and her attorney to appear at a compliance conference, and the granting of the defendants' respective oral applications pursuant to, inter alia, 22 NYCRR 202.27(b) to dismiss the action, dismissed the action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This medical malpractice action was dismissed by a judgment dated June 2, 2015, after neither the plaintiff nor her attorney appeared at a compliance conference and the Supreme Court granted the respective oral applications of the defendants pursuant to, inter alia, 22 NYCRR 202.27(b) to dismiss the action. To be relieved of the default in appearing at that conference, the plaintiff was required to show both a reasonable excuse for the default and the existence of a potentially meritorious cause of action (see CPLR 5015[a] [1] ; Polsky v. Simon, 145 A.D.3d 693, 693, 43 N.Y.S.3d 101 ; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 24 N.Y.S.3d 523 ; Mazzio v. Jennings, 128 A.D.3d 1032, 8 N.Y.S.3d 596 ).

Here, even if the plaintiff had shown a reasonable excuse for her default, the Supreme Court correctly determined that the plaintiff failed to establish that she had a potentially meritorious medical malpractice cause of action. Contrary to the plaintiff's contention, a party seeking to vacate a default or to restore a medical malpractice case must submit the affirmation of an expert (see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353 ; King v. Dobriner, 106 A.D.3d 1053, 1054, 966 N.Y.S.2d 162 ; Knowles v. Schaeffer, 70 A.D.3d 897, 898, 893 N.Y.S.2d 880 ; Murray v New York City Health & Hosps. Corp., 52 A.D.3d 792, 861 N.Y.S.2d 372 ; Williams v. D'Angelo, 24 A.D.3d 538, 806 N.Y.S.2d 238 ). Furthermore, the certified medical records submitted by the plaintiff do not demonstrate whether any of the defendants deviated from accepted standards...