Ward v. N.Y. City Health & Hospitals Corp.

• Decision Date: 08 March 2011
• Citation: 918 N.Y.S.2d 93,82 A.D.3d 471
• Court: New York Supreme Court — Appellate Division
• Parties: Trayvon WARD, etc., et al., Plaintiffs-Appellants, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant-Respondent.

918 N.Y.S.2d 93 82 A.D.3d 471 Trayvon WARD, etc., et al., Plaintiffs-Appellants, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant-Respondent. Supreme Court, Appellate Division, First Department, New York. March 8, 2011.

Regina L. Darby, New York, for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondent.

TOM, J.P., SWEENY, RENWICK, FREEDMAN, MANZANET-DANIELS, JJ.

Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 8, 2008, which denied plaintiffs' motion to vacate an order granting, on default, defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Defendant obtained a default judgment dismissing the action after plaintiffs failed to comply with a pre-condition to commencing action by failing to appear at a GML § 50-h hearing, after adjourning the hearing nine times. In seeking to vacate the dismissal, plaintiffs failed to demonstrate a meritorious defense ( see Best v. City of New York, 97 A.D.2d 389, 468 N.Y.S.2d 7 [1983], affd. 61 N.Y.2d 847, 473 N.Y.S.2d 975, 462 N.E.2d 152 [1984]; Wells v. City of New York, 254 A.D.2d 121, 678 N.Y.S.2d 498 [1998], lv. dismissed 92 N.Y.2d 1046, 685 N.Y.S.2d 422, 708 N.E.2d 179 [1999], cert. denied 527 U.S. 1012, 119 S.Ct. 2355, 144 L.Ed.2d 251 [1999] ). They also failed to demonstrate the merits of their cause of action by not submitting an affidavit of merit by a medical professional ( see Walker v. City of New York, 46 A.D.3d 278, 281-282, 847 N.Y.S.2d 173 [2007]; Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 634, 768 N.Y.S.2d 735, 800 N.E.2d 1102 [2003] ).

Nor was plaintiffs' "conclusory and perfunctory" claim of law office failure a reasonable excuse for the default in view of the pattern of dilatory behavior they engaged in in prosecuting this matter ( see Perez v. New York City Hous. Auth., 47 A.D.3d 505, 505-506, 850 N.Y.S.2d 75 [2008]; Metral v. Bonifacio, 309 A.D.2d 724, 766 N.Y.S.2d 550 [2003] ). There were, in addition to the 10 missed appointments for a General Municipal Law § 50-h hearing, and other things, three motions to file a late notice of claim. In the nearly 10 years since plaintiffs filed their late notice of claim, discovery has not even been commenced ( see Metral, 309 A.D.2d at 724, 766 N.Y.S.2d 550). Moreover, their proffered excuse is based not on the affirmant's personal knowledge but on the hearsay of a per diem attorney who claimed that a motion clerk advised him that no...