Francis v Long Is. Coll. Hosp.

2007 NY Slip Op 08408 [45 AD3d 529]

November 7, 2007

Appellate Division, Second Department

As corrected through Wednesday, January 16, 2008

Bruce Francis, Respondent, v Long Island College Hospitalet al., Appellants, et al., Defendants.

—[*1]Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandellof counsel), for appellants Long Island College Hospital and Ivan Grunberger.

Harris Beach PLLC, New York, N.Y. (Pamela B. Goldsmith of counsel), for appellant C.Chee.

Albert Ghunney, Jamaica, N.Y., for respondent.

In an action, inter alia, to recover damages for medical malpractice, the defendants Long IslandCollege Hospital and Ivan Grunberger appeal, and the defendant C. Chee separately appeals,from an order of the Supreme Court, Kings County (Ruditzky, J.), dated February 10, 2007,which granted the plaintiff's motion to vacate his default in failing to appear for a scheduled courtconference and to restore the case to the calendar.

Ordered that the order is reversed, on the law and in the exercise of discretion, with one billof costs, and the plaintiff's motion is denied.

In order to vacate his default in appearing on a scheduled conference date, the plaintiff wasrequired to demonstrate both a reasonable excuse for his failure to appear and a meritorious causeof action (see McClaren v Bell Atl.,30 AD3d 569 [2006]; Kein vZeno, 23 AD3d 351 [2005]; Rubenbauer v Mekelburg, 22 AD3d 826, 827 [2005]). The excusetendered by the plaintiff's attorney was unreasonable [*2]underthe circumstances of this case, and thus we do not reach the question of the plaintiff'sdemonstration of merit. Accordingly, the Supreme Court improvidently exercised its discretion ingranting the plaintiff's motion to vacate his default. Crane, J.P., Ritter, Fisher, Covello andDickerson, JJ., concur.