| Byers v Winthrop Univ. Hosp. |
| 2012 NY Slip Op 07948 [100 AD3d 817] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Lisa-Anne Byers, Appellant, v Winthrop UniversityHospital et al., Respondents. |
—[*1] Montfort, Healey, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., ofcounsel), for respondent Winthrop University Hospital. Santangelo, Benvenuto & Slattery (James W. Tuffin, Melville, N.Y., of counsel), forrespondents Nassau Surgical Associates and Frank A. Monteleone.
In an action to recover damages for medical malpractice and lack of informed consent, theplaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered June 29,2011, which denied her motion, in effect, to vacate a judgment of the same court dated June 29,2010, dismissing the complaint pursuant to CPLR 3216, to restore the action to the calendar, andto extend her time to file a note of issue.
Ordered that the order is affirmed, with one bill of costs to the respondents appearingseparately and filing separate briefs.
There is no merit to the plaintiff's contention that the judgment improperly dismissed thecomplaint pursuant to CPLR 3216 and, therefore, that her motion to vacate the judgment shouldhave been granted. The certification order dated February 16, 2010, directing the plaintiff to file anote of issue within 90 days, and warning that the complaint would be deemed dismissed withoutfurther order of the Supreme Court if the plaintiff failed to comply with that directive, had thesame effect as a valid 90-day notice pursuant to CPLR 3216 (see Fenner v County of Nassau, 80 AD3d 555, 555 [2011]; Sicoli v Sasson, 76 AD3d 1002,1003 [2010]; Rodriguez v Five TownsNissan, 69 AD3d 833, 834 [2010]). Having received a 90-day notice, the plaintiff wasrequired either to serve and file a timely note of issue or to move pursuant to CPLR 2004, priorto the default date, to extend the time within which to serve and file a note of issue (seeFenner v County of Nassau, 80 AD3d at 555; Sharpe v Osorio, 21 AD3d 467, 468 [2005]; DeVore v Lederman, 14 AD3d648, 649 [2005]). In light of the plaintiff's failure to do either, the complaint was properlydismissed pursuant to CPLR 3216 (seePetersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 783 [2008]; C&S Realty, Inc. v Soloff, 22 AD3d515, 516 [2005]; Vinikour vJamaica Hosp., 2 AD3d 518, 519 [2003]).
To vacate the judgment dismissing the complaint, the plaintiff was required to demonstrate ajustifiable excuse for her failure to comply with the certification order and the existence of apotentially meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins[*2]Constr. Co., 89 NY2d 499, 503 [1997]; Rodriguez vFive Towns Nissan, 69 AD3d at 834; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d1076, 1077 [2009]; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 783).Although the court has the discretion to accept law office failure as a justifiable excuse(see CPLR 2005), a claim of law office failure should be supported by a "detailed andcredible" explanation of the default at issue (see Henry v Kuveke, 9 AD3d 476, 479 [2004]; see also Gironda v Katzen, 19 AD3d644, 645 [2005]), and conclusory and unsubstantiated claims of law office failure areinsufficient (see Lugauer v Forest CityRatner Co., 44 AD3d 829, 830 [2007]; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 636-637 [2006];Matter of Denton v City of MountVernon, 30 AD3d 600, 601 [2006]). In addition, in a medical malpractice action, expertmedical opinion evidence is required to demonstrate merit, except as to matters within theordinary experience and knowledge of laypersons (see Mosberg v Elahi, 80 NY2d 941,942 [1992]).
The undetailed and uncorroborated claim of law office failure set forth by the plaintiff'sattorney, and the unsubstantiated claim that he left the country to assist his injured sister, did notamount to a justifiable excuse for the failure to comply with the certification order (seeLugauer v Forest City Ratner Co., 44 AD3d at 830; Matter of ELRAC, Inc. v Holder,31 AD3d at 636-637) or for the delay of more than six months in moving to vacate the defaultjudgment (see Bowman v Kusnick,35 AD3d 643, 644 [2006]; Williams v Pratt Inst., 212 AD2d 692, 692 [1995]).Moreover, the plaintiff failed to demonstrate the existence of a potentially meritorious cause ofaction (see Orphan v Pilnik, 15NY3d 907, 908 [2010]; Belak-Redlv Bollengier, 74 AD3d 1110, 1111 [2010]; Behar v Coren, 21 AD3d 1045, 1047 [2005]). Accordingly, theSupreme Court providently exercised its discretion in denying the plaintiff's motion, inter alia, ineffect, to vacate the judgment dismissing the complaint pursuant to CPLR 3216. Rivera, J.P.,Florio, Dickerson, Leventhal and Lott, JJ., concur. [Prior Case History: 2011 NY Slip Op31823(U).]