Thomas v. Avalon Gardens Rehab. & Health Care Ctr.

• Decision Date: 05 June 2013
• Citation: 107 A.D.3d 694,966 N.Y.S.2d 505,2013 N.Y. Slip Op. 03988
• Parties: Tsai–Ann THOMAS, etc., et al., respondents, v. AVALON GARDENS REHABILITATION & HEALTH CARE CENTER, appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 694

966 N.Y.S.2d 505

2013 N.Y. Slip Op. 03988

Tsai–Ann THOMAS, etc., et al., respondents,

v.AVALON GARDENS REHABILITATION & HEALTH CARE CENTER, appellant.

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

June 5, 2013.

Melito & Adolfsen, P.C., New York, N.Y. (Louis G. Adolfsen and Michael H. Bazzi of counsel), for appellant.

The Stein Law Group, PLLC, Brooklyn, N.Y. (John J. Nonnenmacher of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SYLVIA HINDS–RADIX, JJ.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated December 15, 2011, which granted the plaintiffs' motion, in effect, pursuant to CPLR 2221(a)(1) and CPLR 5015 (a)(1) to vacate an order of the same court dated July 21, 2011, entered upon their default in appearing on the return date of their motion, and to restore the plaintiffs' prior motion to the calendar and, thereupon, in effect, granted the plaintiffs' prior motion, restored the matter to active pre-note of issue status, and denied the defendant's cross motion pursuant to CPLR 3126(3) to dismiss the complaint.

ORDERED that the order dated December 15, 2011, is reversed, on the law and in the exercise of discretion, with costs, the plaintiffs' motion, in effect, pursuant to CPLR 2221(a)(1) and CPLR 5015(a)(1), to vacate the order dated July 21, 2011, entered upon their default in appearing on the return date of their motion, and to restore their prior motion to the calendar is denied, and the defendant's cross motion pursuant to CPLR 3126(3) to dismiss the complaint is granted.

“ ‘A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense’ ” ( Matter of Cummings v. Rosoff, 101 A.D.3d 713, 714, 955 N.Y.S.2d 193, quoting Matter of Lorraine D. v. Widmack C., 79 A.D.3d 745, 745, 912 N.Y.S.2d 633;seeCPLR 5015[a][1]; Smyth v. Getty Petroleum Mktg., Inc., 103 A.D.3d 790, 959 N.Y.S.2d 543;Wild v. Target Corp., 74 A.D.3d 799, 901 N.Y.S.2d 552;Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608;Yearwood v. Post Park, LLC, 91 A.D.3d 766, 767, 936 N.Y.S.2d 893). Here, the plaintiffs failed to demonstrate a reasonable excuse for their default. “ ‘Although a court has the discretion to accept law office failure as a reasonable excuse ( seeCPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse’ ” ( Eastern Sav. Bank, FSB v. Charles, 103 A.D.3d 683, 684, 959 N.Y.S.2d 704, quoting White v. Daimler Chrysler Corp., 44 A.D.3d 651, 651, 843 N.Y.S.2d 168;see Byers v. Winthrop Univ. Hosp., 100 A.D.3d 817, 818–819, 955 N.Y.S.2d 105). Moreover, the plaintiffs' pattern of persistent neglect in failing to comply with discovery demands and court orders belies any contention that they had a reasonable excuse for their failure to appear on the return date of their motion ( see Trepel v. Greenman–Pedersen, Inc., 99 A.D.3d 789, 791, 952 N.Y.S.2d 227). In any event, the plaintiffs failed to demonstrate the existence of a potentially meritorious cause of action in support of their motion. While the plaintiffs submitted the affidavit of Sue Ann Goodbar, the mother of the infant plaintiff, it contained only generalized and conclusory allegations of substandard care of the infant plaintiff by the...