| Nowell v NYU Med. Ctr. |
| 2008 NY Slip Op 07638 [55 AD3d 573] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Patricia Nowell et al., Appellants, v NYU Medical Center et al.,Respondents, et al., Defendants. |
—[*1] Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, theplaintiffs appeal from an order of the Supreme Court, Kings County (Rosenberg, J.), dated October18, 2007, which denied their motion pursuant to CPLR 5015 (a) (1) to vacate a prior order of thesame court dated May 15, 2007, granting that branch of the unopposed motion of the defendants NYUMedical Center, Thomas Diflo, and Peter Schlossberg which was to dismiss the complaint insofar asasserted against them, among other things, for failure to comply with discovery.
Ordered that the order dated October 18, 2007 is affirmed, with costs.
"A party seeking to vacate an order entered upon his or her default is required to demonstrate,through the submission of supporting facts in evidentiary form, both a reasonable excuse for the defaultand the existence of a meritorious cause of action" (White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]).Moreover, "[t]he determination of whether to vacate a default is generally left to the sound discretion ofthe motion court, and will not be disturbed if the record supports such determination" (id.;see SS Constantine & Helen's Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d[*2]744 [2007]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). Here, theplaintiffs failed to present a reasonable and acceptable excuse for their failure to submit oppositionpapers on the return date of the motion to dismiss (see e.g. Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]; Francis v Long Is. Coll. Hosp., 45 AD3d529 [2007]; Solomon v Ramlall, 18AD3d 461 [2005]; Kandel v Hoffman, 309 AD2d 904 [2003]) and to comply withcourt-ordered expert witness disclosure pursuant to CPLR 3101 (d) (see Raciti v Sands PointNursing Home, 54 AD3d 1014 [2008]; Simpson v Tommy Hilfiger U.S.A., Inc., 48AD3d 389 [2008]). Similarly, the affidavit of the plaintiffs' medical expert was woefully inadequateto establish the existence of a meritorious claim, as it failed to specify the acceptable standard ofmedical care, any deviation therefrom in the medical care rendered to the decedent, and any causalconnection between that care and the decedent's death (see e.g. Bollino v Hitzig, 34 AD3d 711 [2006]). Accordingly, theSupreme Court providently exercised its broad discretion in denying the plaintiffs' motion to vacate theirdefault.
The plaintiffs' remaining contention is without merit. Mastro, J.P., Lifson, Carni and Eng, JJ.,concur.