Vera v. Soohoo

• Decision Date: 24 October 2012
• Citation: 2012 N.Y. Slip Op. 07104,99 A.D.3d 990,953 N.Y.S.2d 615
• Parties: Gladys VERA, etc., appellant, v. Derek K. SOOHOO, etc., defendant, St. Joseph's Hospital, defendant third-party plaintiff-respondent; Surinder Malhotra, etc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 990

953 N.Y.S.2d 615

2012 N.Y. Slip Op. 07104

Gladys VERA, etc., appellant,

v. Derek K. SOOHOO, etc., defendant,St. Joseph's Hospital, defendant third-party plaintiff-respondent;Surinder Malhotra, etc., third-party defendant-respondent.

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

Oct. 24, 2012.

The Pagan Law Firm, P.C., New York, N.Y. (Tania M. Pagan of counsel), for appellant.

Voute, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Hal Roberts of counsel), for defendant third-party plaintiff-respondent.

Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for third-party defendant-respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), dated June 4, 2010, which denied her motion to vacate an order of the same court dated January 11, 2010, dismissing the action pursuant to 22 NYCRR 202.27 upon her failure to proceed to trial, and to restore the action to the trial calendar.

ORDERED that the order dated June 4, 2010, is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff's motion to vacate the order dated January 11, 2010, and to restore the action to the trial calendar is granted.

On July 15, 1999, the plaintiff's decedent entered the defendant St. Joseph's Hospital (hereinafter the Hospital) with severe epistaxis. He was transferred to another hospital on July 27, 1999, and died in December 1999. In 2002, the plaintiff, the decedent's wife, commenced this action, interalia, to recover damages for medical malpractice against, among others, the Hospital. In June 2005, the Hospital moved for summary judgment dismissing the complaint insofar as asserted against it. Its motion was granted in part and denied in part, and in 2007 this Court affirmed that partial denial of summary judgment ( see Vera v. Soohoo, 41 A.D.3d 586, 838 N.Y.S.2d 154). In March 2008, after the plaintiff and the Hospital had agreed to a trial date in May 2008, the Hospital commenced a third-party action against Surinder Malhotra, an otolaryngologist who had treated the decedent during his stay at the Hospital. The plaintiff made several discovery requests of Malhotra, but he did not comply with those requests. The plaintiff made three good faith attempts at resolving the issues surrounding discovery, but to no avail. The plaintiff ultimately moved for the imposition of sanctions against Malhotra or to compel him to comply with her discovery requests. The Supreme Court granted that branch of the motion which was to compel Malhotra to comply with the discovery requests, and further adjourned the trial. Finally, at a status conference on September 11, 2009, the Supreme Court scheduled the trial for January 4, 2010.

On January 4, 2010, David Pierguidi of The Pagan Law Firm, P.C., appeared on behalf of the plaintiff, and notified the Supreme Court that the plaintiff's expert, who was of paramount importance to the plaintiff's case, was unavailable to testify. Counsel provided the Supreme Court with an affidavit from the expert, in which he stated that he would be away on vacation from January 5 through January 13, and that the vacation could not be canceled. Counsel informed the Supreme Court that the parties had conferred and would all be available to try the case in the middle of February. The Supreme Court, after noting that the case was eight years old, offered to adjourn the matter until January 14. Counsel for Malhotra inquired as to how long the plaintiff's case would last, noting that he had a case on January 25, in Rockland County, and a case in federal court scheduled for February 1. The plaintiff's counsel responded that his case alone would take three days to try, and alerted the court that his firm had a conflict with another case that was being tried in Kings County. In response, the Supreme Court directed the law clerk to read the procedural history of the case into the record. While she was still doing so, the Supreme Court cut her off, stating, “that's enough.” Then, without further comment or questions about plaintiff's counsel's claimed scheduling conflict, the Supreme Court, sua sponte, dismissed the action pursuant to 22 NYCRR 202.27, stating “this is a fault [sic] dismissal.” The court subsequently issued a written order indicating that the action was being dismissed for counsel's failure to proceed to trial on January 4, 2010.

The plaintiff timely moved to vacate the order and restore the action to the trial calendar. In the moving papers, the plaintiff's counsel affirmed that the trial date offered by the Supreme Court, January 14, 2010, conflicted with a case entitled Bryan v. Hurwitz that his firm was scheduled to try on January 19, 2010, and that Bryan v. Hurwitz had a 1999 index number. In an order dated June 4, 2010, the Supreme Court denied the plaintiff's motion, finding that, while she had a potentially meritorious cause of action, she had failed to provide a reasonable excuse for her inability to proceed on January 4, 2010, or January 14, 2010.

Under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar ( see Fink v. Antell, 19 A.D.3d 215, 796 N.Y.S.2d 524;Johnson v. Brooklyn Hosp. Ctr., 295 A.D.2d 567, 569, 744 N.Y.S.2d 215;Farley v. Danaher Corp., 295 A.D.2d 559, 560, 744 N.Y.S.2d 709). In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action ( see e.g. Felsen v. Stop & Shop Supermarket Co., LLC, 83 A.D.3d 656, 919 N.Y.S.2d 883).

Here, the plaintiff's proffered reason for being unable to proceed on January 4, 2010, was that her expert was unavailable to testify because of a scheduled vacation between January 5 and January 13, 2010, which the expert could not cancel. That excuse was a reasonable one ( see Vorontsova v. Priolo, 61 A.D.3d 556, 556–557, 876 N.Y.S.2d 640;Conde v. Williams, 6 A.D.3d 569, 570, 774 N.Y.S.2d 834;Goichberg v. Sotudeh, 187 A.D.2d 700, 701, 590 N.Y.S.2d 283;cf. Kandel v. Hoffman, 309 A.D.2d 904, 766 N.Y.S.2d 115;Spodek v. Lasser Stables, 89 A.D.2d 892, 453 N.Y.S.2d 706). Indeed, the Supreme Court accepted that excuse, as evidenced by its offer during the colloquy on January 4 to adjourn the trial to January 14. In addition, in its order denying the plaintiff's motion to vacate the default, the Supreme Court stated that it had been willing to adjourn the trial to accommodate the expert's vacation, tacitly acknowledging that it had concluded that the excuse was reasonable. Nevertheless, it held in that order that the plaintiff's action should be dismissed, in part, because the record was silent as to when the plaintiff's counsel informed his expert of the trial date, when the expert scheduled his vacation, and when counsel learned of the expert's vacation schedule. However, that claimed justification for dismissing the plaintiff's action, which is adopted by the dissent, is not supported by the record since the Supreme Court never mentioned any of those enumerated deficiencies during the colloquy on January 4, 2010.

Similarly, in its order denying the motion to vacate the default, the Supreme Court explained that the dismissal was based, in part, on the plaintiff's failure to proceed on January 14, 2010, a rationale which was not advanced in the court's written order dismissing the action. Moreover, contrary to the Supreme Court's explanation, failure to proceed on January 14 could not be a premise for dismissing the action, as the court never ordered the parties to appear on that date, and the plaintiff's counsel could not be in default if he did not have a legal duty to perform, the very definition of a default ( see Pelaez v. Westchester Med. Ctr., 15 A.D.3d 375, 376, 789 N.Y.S.2d 533). The plaintiff's counsel also could not be in default for failing to proceed on January 14 for the simple reason that the January 14 date had not yet passed when the action was dismissed ( see22 NYCRR 202.27 [“ At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record”] [emphasis added] ).

Moreover, during the colloquy on January 4, the plaintiff's counsel, along with the attorneys for the Hospital and Malhotra, alerted the court to scheduling conflicts so a schedule could be worked out, but the Supreme Court precipitously dismissed the action. In fact, prior to the dismissal, the plaintiff's counsel stated that all of the parties could be ready for trial in mid-February. Thus, the plaintiff's counsel was never afforded an opportunity to fully explain his firm's conflict. Had the Supreme Court actually set January 14 as the trial date and directed the parties to appear, the plaintiff's counsel would have had the opportunity to obtain substitute counsel or to have the courts determine priority of the trials based on the existence of an actual engagement of counsel ( see22 NYCRR 125.1).

Even accepting the post hoc conclusion that the action was validly dismissed for the failure to proceed on January 14, a reasonable excuse for that failure was provided. The plaintiff's counsel explained that his firm had another trial involving a medical malpractice claim scheduled in Kings County for January 19, 2010, that the case had been marked as final, and that it was older than this case. The plaintiff's counsel noted that, in the instant action, the presentation of his case alone would take three days, and, thus, depending on the length of the case presented by the Hospital and Malhotra, there was the potential for a conflict between the Kings County case and this...