| Hogan v Schwartz |
| 2014 NY Slip Op 05158 [119 AD3d 650] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Barbara Hogan, Appellant, v Evan Schwartzet al., Respondents, et al., Defendants. |
Raymond A. Raskin, Brooklyn, N.Y. (Louis A. Badolato of counsel), forappellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, New York, N.Y. (Christopher Simone,Deirdre E. Tracey, and Juan C. Gonzalez of counsel), for respondent EvanSchwartz.
Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead,N.Y. (Susan Weihs Darlington of counsel), for respondents Trump Pavilion for Nursingand Rehabilitation and Jamaica Hospital Nursing Home Co., Inc.
In an action to recover damages for medical malpractice and wrongful death, theplaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.),entered February 8, 2012, which denied her motion to vacate so much of a prior order ofthe same court entered March 9, 2010, as granted the motion of the defendant EvanSchwartz and the separate motion of the defendants Trump Pavilion for Nursing andRehabilitation and Jamaica Hospital Nursing Home Co., Inc., for summary judgmentdismissing the complaint insofar as asserted against each of them, upon her failure tooppose the motions, and for leave to submit opposition to the motions.
Ordered that the order entered February 8, 2012, is reversed, on the law, on the facts,and in the exercise of discretion, with one bill of costs payable to the plaintiff by therespondents appearing separately and filing separate briefs, the plaintiff's motion tovacate so much of the order entered March 9, 2010, as granted the separate motions ofthe defendant Evan Schwartz and the defendants Trump Pavilion for Nursing andRehabilitation and Jamaica Hospital Nursing Home Co., Inc., for summary judgmentdismissing the complaint insofar as asserted against each of them is granted, and thematter is remitted to the Supreme Court, Queens County, for further proceedings,including a determination of those defendants' summary judgment motions on themerits.
On April 16, 2002, the plaintiff's decedent underwent knee replacement surgeryperformed by the defendant Evan Schwartz at the defendant St. John's Queens Hospital.Schwartz prescribed a postoperative blood thinner without specifying the prescription'sduration. Three days later, the plaintiff's decedent was transferred to the defendantsTrump Pavilion for Nursing and Rehabilitation and Jamaica Hospital Nursing Home Co.,Inc. (hereinafter Trump/Jamaica), for rehabilitative care. At Trump/Jamaica, thedecedent's medical treatment was overseen by Pedro [*2]Ong, who discontinued the use of the blood thinner onApril 22, 2002. On April 30, 2002, the plaintiff's decedent suffered a pulmonaryembolism and died. Thereafter, the plaintiff commenced this action to recover damagesfor medical malpractice and wrongful death.
In January 2010, Schwartz and Trump/Jamaica (hereinafter collectively therespondents) separately moved for summary judgment dismissing the complaint insofaras asserted against each of them. Although the return date of the motions had beenadjourned on four occasions, the plaintiff failed to submit timely opposition. TheSupreme Court granted the respondents' separate motions for summary judgmentdismissing the complaint insofar as asserted against each of them, upon the plaintiff'sfailure to oppose. Thereafter, the court denied the plaintiff's motion to vacate the priororder and for leave to submit opposition to the motions. The plaintiff appeals.
To succeed in vacating an order made upon a plaintiff's failure to oppose a motion,the plaintiff is required to demonstrate both a reasonable excuse for the default and apotentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Silva v Honeydew Cab Corp.,116 AD3d 691 [2014]). Here, the plaintiff established a reasonable excuse forfailing to timely oppose the respondents' summary judgment motions. The SupremeCourt had directed that the motions be made by a certain date notwithstanding itsknowledge that the parties' discovery was incomplete. The four adjournments did notadequately take into account that the plaintiff's counsel needed to schedule and conductthe deposition of a physician, obtain the deposition transcript from the stenographer,secure the physician's execution of the transcript, forward the transcript to the plaintiff'sexpert, draft and obtain execution of the expert's affirmation in opposition to thesummary judgment motions, and then finalize, serve, and file the opposition papers. As aresult, the Supreme Court improvidently exercised its discretion in denying the plaintiff'srequest for a further adjournment of the return date of the motions. The need for thefurther adjournment was not due to any lack of due diligence or delay on the plaintiff'spart, and the additional evidence was material (see Efstathiou v Cuzco, LLC, 51 AD3d 712, 714 [2008];Romero v City of New York, 260 AD2d 461, 461-462 [1999]).
The plaintiff also established that she had a potentially meritorious opposition to therespondents' summary judgment motions. Her expert's affirmation, when it wasultimately produced, as well as other documentary evidence submitted with the plaintiff'smotion, raised potentially meritorious issues regarding whether Schwartz deviated fromthe standard of care by failing to set a duration for the prescribed blood thinner andwhether Trump/Jamaica may be held vicariously liable for Ong's alleged deviation fromthe standard of care.
Accordingly, the Supreme Court should have granted the plaintiff's motion to vacateand for leave to submit opposition to the motions, and we remit the matter to theSupreme Court, Queens County, for further proceedings, including a determination of therespondents' summary judgment motions on the merits. Dillon, J.P., Lott, Austin andBarros, JJ., concur.