| Schenk v Staten Is. Univ. Hosp. |
| 2013 NY Slip Op 05306 [108 AD3d 661] |
| July 17, 2013 |
| Appellate Division, Second Department |
| Carolyn Mary Schenk, Appellant, v Staten IslandUniversity Hospital et al., Respondents, et al., Defendant. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao, Sean F.X. Dugan,and Charles S. Schechter of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court,Richmond County (Aliotta, J.), dated February 24, 2009, as denied her motiondenominated, inter alia, as one for leave to reargue, but which was, in actuality, one tovacate a prior order of the same court dated May 19, 2008, granting the unopposedmotion of the defendants Staten Island University Hospital, Frank Loh, and RobertLaPenna pursuant to CPLR 3126 to dismiss the complaint insofar as asserted againstthem based on the plaintiff's failure to comply with discovery demands.
Ordered that the order dated February 24, 2009, is affirmed insofar as appealed from,without costs or disbursements.
The plaintiff commenced this action in 2001, alleging that she sustained injurieswhile undergoing a lumbar puncture. Issue was joined by service of separate answerswith discovery demands by the defendants Staten Island University Hospital, Frank Loh,and Robert LaPenna (hereinafter collectively the hospital defendants). In 2008, thehospital defendants moved pursuant to CPLR 3126 to dismiss the complaint insofar asasserted against them based on the plaintiff's failure to comply with discovery demands.The plaintiff did not oppose the motion or appear for oral argument on the motion. In anorder dated May 19, 2008, the Supreme Court granted the hospital defendants'unopposed motion. Thereafter, the plaintiff purportedly moved, inter alia, for leave toreargue her opposition to the hospital defendants' motion and, in effect, to vacate theorder. In an order dated February 24, 2009, the Supreme Court treated the plaintiff'smotion as one for leave to reargue and, in effect, granted reargument and, uponreargument, adhered to its original determination. However, since the order dated May19, 2008, was entered upon the plaintiff's default in opposing the hospital defendants'motion, the Supreme Court should have treated the plaintiffs' motion solely as a motionto vacate.
Although the Supreme Court incorrectly treated the plaintiff's motion as one forleave to reargue, it nonetheless providently exercised its discretion in denying themotion. "A party seeking to vacate an order entered upon his or her default in opposing amotion must demonstrate [*2]both a reasonable excusefor the default and a potentially meritorious opposition to the motion" (Dokaj v Ruxton Tower Ltd.Partnership, 91 AD3d 812, 813 [2012]; see CPLR 5015 [a] [1]; Smyth v Getty Petroleum Mktg.,Inc., 103 AD3d 790 [2013]; Infante v Breslin Realty Dev. Corp., 95 AD3d 1075[2012]; New Seven ColorsCorp. v White Bubble Laundromat, Inc., 89 AD3d 701 [2011]; L&L Auto Distribs. & SuppliersInc. v Auto Collection, Inc., 85 AD3d 734 [2011]; Bazoyah v Herschitz, 79 AD3d1081 [2010]). Here, even if the plaintiff proffered a reasonable excuse for herdefault, she failed to demonstrate a potentially meritorious opposition to the motion(see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d at 814; New SevenColors Corp. v White Bubble Laundromat, Inc., 89 AD3d at 702; Bazoyah vHerschitz, 79 AD3d at 1082). Accordingly, the plaintiff was not entitled to vacaturof the order dated May 19, 2008.
The plaintiff's remaining contentions are without merit. Dillon, J.P., Chambers,Roman and Cohen, JJ., concur.
Motion by the respondents, inter alia, on an appeal from an order of the SupremeCourt, Richmond County, dated February 24, 2009, to dismiss the appeal on the groundthat no appeal lies from an order denying reargument or resettlement. By decision andorder on motion of this Court dated August 5, 2009, that branch of the motion which isto dismiss the appeal on the ground that no appeal lies from an order denying reargumentor resettlement was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is
Ordered that the branch of the motion which is to dismiss the appeal from the orderdated February 24, 2009, is denied. Dillon, J.P., Chambers, Roman and Cohen, JJ.,concur.