| Thapt v Lutheran Med. Ctr. |
| 2011 NY Slip Op 08141 [89 AD3d 837] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Zaina N. Thapt et al., Appellants, v Lutheran MedicalCenter et al., Defendants, and Ayman Shahin, Respondent. |
—[*1] Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y. (Angela M.Ribaudo of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, etc.,the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Steinhardt, J.), datedDecember 11, 2009, which denied their motion to vacate their default in opposing a motion ofthe defendant Ayman Shahine for summary judgment dismissing the complaint insofar asasserted against him, and (2), as limited by their brief, from so much of an order of the samecourt dated September 13, 2010, as, upon renewal, adhered to the original determination in theorder dated December 11, 2009.
Ordered that the appeal from the order dated December 11, 2009, is dismissed, as that orderwas superseded by the order dated September 13, 2010, made upon renewal; and it is further,
Ordered that the order dated September 13, 2010, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendant Ayman Shahine.
To vacate their default in opposing the motion of the defendant Ayman Shahine for summaryjudgment dismissing the complaint insofar as asserted against him, the plaintiffs were [*2]required to demonstrate a reasonable excuse for not opposing themotion and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Bazoyah v Herschitz, 79 AD3d1081, 1081-1082 [2010]). The Supreme Court providently rejected the plaintiffs' excuse oflaw office failure, as the record shows that the alleged mistake was not isolated, but rather part ofa pattern of willful delay and default (see Santiago v New York City Health & Hosps. Corp., 10 AD3d393 [2004]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]). Moreover, theSupreme Court properly determined that the conclusory affidavit of merit presented by theplaintiffs was insufficient to establish a potentially meritorious opposition to the motion (see Donovan v Chiapetta, 72 AD3d635, 636 [2010]).
Accordingly, upon renewal, the Supreme Court properly adhered to its original determinationdenying the plaintiffs' motion to vacate their default. Rivera, J.P., Eng, Belen and Austin, JJ.,concur.