| Rocco v Family Foot Ctr. |
| 2012 NY Slip Op 03161 [94 AD3d 1077] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Susan Rocco, Appellant, v Family Foot Center, Defendant,and Stanley J. Zawada, Respondent. (And a Third-Party Action.) |
—[*1] Stanley J. Zawada, Whitestone, N.Y., respondent pro se.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Queens County (O'Donoghue, J.), entered October 22, 2010, which deniedher motion (a) pursuant to CPLR 5015 (a) (1) to vacate an order of the same court entered May22, 2009, granting the motion of the defendant Stanley J. Zawada pursuant to CPLR 3404 todismiss the complaint for failure to prosecute, upon her default in opposing the motion, (b) torestore the action to the trial calendar, and (c) pursuant to CPLR 3124 to compel the defendantStanley J. Zawada to appear for a deposition.
Ordered that the order entered October 22, 2010, is reversed, on the facts and in the exerciseof discretion, with costs, the plaintiff's motion (a) pursuant to CPLR 5015 (a) (1) to vacate theorder entered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant toCPLR 3124 to compel the defendant Stanley J. Zawada to appear for a deposition is granted, themotion of the defendant Stanley J. Zawada pursuant to CPLR 3404 to dismiss the complaint forfailure to prosecute is denied, and the matter is remitted to the Supreme Court, Queens County,to schedule depositions.
The plaintiff sought treatment from November 1, 2001, through March 15, 2002, from thedefendant Stanley J. Zawada, a podiatrist, doing business as the defendant Family Foot Center.The plaintiff commenced this action to recover damages for medical malpractice against Zawadaand Family Foot Center. The plaintiff alleged that Zawada negligently performed operations onboth of her feet, causing her to have to seek further treatment from the third-party defendant,Charles Lombardi, to correct the conditions allegedly caused by Zawada's negligent treatment.
The plaintiff and Zawada attended a preliminary conference at which dates were scheduledfor depositions. The plaintiff contended that Zawada adjourned these court-ordered depositions.The parties then appeared for a compliance conference at which the court directed that thedepositions were to be conducted on December 14, 2005, and the plaintiff was to file her note ofissue by March 3, 2006. Zawada commenced a third-party action against Lombardi in theinterim. [*2]As a result, the depositions were adjourned.Nevertheless, the plaintiff filed her note of issue by March 3, 2006, in accordance with thecompliance conference order.
On January 10, 2007, the parties entered into a so-ordered stipulation to strike the case fromthe trial calendar. They also agreed that depositions were to be conducted within 60 days of thestipulation, and that the plaintiff had to move to restore the action to the trial calendar by July 13,2007.
The plaintiff did not move to restore the action to the trial calendar until after July 13, 2007.The Supreme Court denied the plaintiff's motion without prejudice to renew after she obtained anaffidavit of merit. In the meantime, the plaintiff attempted to schedule the depositions. Theplaintiff's counsel made phone calls to Zawada's and Lombardi's counsel, and sent lettersadvising them of her availability, although the depositions were not scheduled. While theplaintiff's counsel was in contact with Zawada's and Lombardi's counsel to schedule thedepositions, Zawada moved pursuant to CPLR 3404 to dismiss the complaint for failure toprosecute.
Although the plaintiff's counsel was served with Zawada's motion, counsel failed to diary thereturn date. As a result, Zawada's motion was granted without opposition in an order entered May22, 2009.
Almost a year later, on April 20, 2010, Lombardi served the plaintiff with a copy of the orderentered May 22, 2009, with notice of entry. The plaintiff was unaware that the complaint hadbeen dismissed until she received the notice of entry of the order. The plaintiff then moved bynotice of motion dated May 14, 2010, (a) pursuant to CPLR 5015 (a) (1) to vacate the orderentered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant to CPLR3124 to compel Zawada to appear for a deposition. In the order appealed from, the SupremeCourt denied the plaintiff's motion. The plaintiff appeals, and we reverse.
In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1), the movingparty is required to demonstrate a reasonable excuse for his or her default and a potentiallymeritorious opposition to the motion (see Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837 [2011]; Bazoyah v Herschitz, 79 AD3d1081, 1081 [2010]; Raciti v SandsPoint Nursing Home, 54 AD3d 1014 [2008]; Montague v Rivera, 50 AD3d 656, 657 [2008]; St. Rose v McMorrow, 43 AD3d1146 [2007]). Here, the plaintiff established that her failure to oppose Zawada's motion wasneither willful nor deliberate (see Racitiv Sands Point Nursing Home, 54 AD3d 1014 [2008]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389 [2008]; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr.Corp., 45 AD3d 634 [2007]). Her attorney's affirmation established that the failure ofthe attorney's firm to diary the return date of Zawada's motion was inadvertent and an isolatedincident.
The plaintiff also established that her opposition to Zawada's motion was potentiallymeritorious. In opposition to a motion pursuant to CPLR 3404 to dismiss the complaint forfailure to prosecute, the plaintiff must "demonstrate a [potentially] meritorious cause of action, areasonable excuse for the delay, and a lack of intent to abandon the action, and that thedefendant[ ] would not be prejudiced by the delay" (Botsas v Grossman, 51 AD3d 617, 617 [2008]). Here, the plaintiffdemonstrated through the affidavit of her expert that she had a potentially meritorious cause ofaction (see Kahgan v Alwi, 67AD3d 742 [2009]; Rodriguez vUnited Parcel Serv., Inc. of Ohio, 17 AD3d 658, 658 [2005]; Sanchez vDenkberg, 284 AD2d 446 [2001]). The plaintiff also demonstrated a reasonable excuse forher delay in moving to restore the action to the trial calendar and her lack of intent to abandon theaction through her attorney's affirmation and exhibits presented on the motion and in reply,which showed that her attorney had been diligently attempting to schedule the depositions, butwas unable to do so as of the date of Zawada's motion (see Kahgan v Alwi, 67 AD3d 742 [2009]; Rodriguez v UnitedParcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446[2001]). In addition, the plaintiff demonstrated that Zawada and Lombardi would not suffer anyprejudice if the action was restored to the trial calendar (see Kahgan v Alwi, 67 AD3d 742 [2009]; Rodriguez v UnitedParcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446[2001]). The plaintiff also acted promptly to cure her default upon learning of it (see Raciti vSands Point Nursing Home, 54 AD3d at 1014).[*3]
In light of the foregoing, the plaintiff established that theSupreme Court improvidently exercised its discretion by denying those branches of her motionwhich were pursuant to CPLR 5015 (a) (1) to vacate the order entered May 22, 2009, and torestore the action to the trial calendar (see Kahgan v Alwi, 67 AD3d 742 [2009]). The Supreme Court alsoimprovidently exercised its discretion in denying that branch of the plaintiff's motion which waspursuant to CPLR 3124 to compel Zawada to appear for a deposition before trial given Zawada'sfailure to comply with prior court orders (see CPLR 3124).
Accordingly, the Supreme Court should have granted the plaintiff's motion, and thereupondenied Zawada's motion to dismiss the complaint for failure to prosecute, and we remit thematter to the Supreme Court, Queens County, to schedule depositions. Dickerson, J.P.,Chambers, Austin and Miller, JJ., concur.