Muriel v New York City Health & Hosps. Corp.

2008 NY Slip Op 05899

Decided on June 24, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 24, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEVEN W. FISHER, J.P.
EDWARD D. CARNI
WILLIAM E. McCARTHY
ARIEL E. BELEN, JJ.
2007-04687
(Index No. 1686/04)






William A. Gallina (Pollack, Pollack, Isaac & De Cicco, New York,
N.Y. [Brian J. Isaac], of counsel), for appellants.
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel
S. Ratner of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated March 26, 2007, which denied their motion to vacate an order of the same court dated January 11, 2006, granting the unopposed motion of the defendant Bronx Lebanon Hospital Center to dismiss the complaint insofar as asserted against it.

ORDERED that the order dated March 26, 2007, is affirmed, with costs.

The Supreme Court properly denied the plaintiffs' motion to vacate their default in opposing the motion of the defendant Bronx Lebanon Hospital Center to dismiss the complaint insofar as asserted against it. Regardless of whether the law-office failure leading to the plaintiffs' nonappearance in the courtroom on the motion's original return date might be considered a reasonable excuse, the plaintiffs failed to provide evidence of a meritorious cause of action. Moreover, the action may be brought only by a qualified personal representative of the decedent and the "proposed administratrix" lacked capacity to proceed in this action (see Carrick v Central Gen. Hosp., 51 NY2d 242).
FISHER, J.P., CARNI, McCARTHY and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court