| Kramarenko v New York Community Hosp. |
| 2015 NY Slip Op 09072 [134 AD3d 770] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| Ganna Kramarenko, as Administrator of the Estate ofIosif Kumysh, Deceased, et al., Appellants, v New York Community Hospital etal., Respondents. |
Frekhtman & Associates (Pollack, Pollack, Isaac & De Cicco, LLP, NewYork, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for appellants.
Aaron Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Steven C.Mandell of counsel), for respondents New York Community Hospital and HassanFarhat.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daryl Paxson andDaniel S. Ratner of counsel), for respondents Yury Zamdborg and Ilya Bilik.
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell ofcounsel), for respondents Metropolitan Jewish Home Care, Inc., Metropolitan JewishHealth System, Home First, Inc., and Beth Israel Medical Center.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal from (1) an order of the Supreme Court, Kings County (Knipel, J.), dated May 31,2013, which denied their motion to vacate a prior order of the same court datedNovember 15, 2012, granting the motion of the defendants Yury Zamdborg and IlyaBilik, the separate motion of the defendants New York Community Hospital and HassanFarhat, and the separate motion of the defendants Metropolitan Jewish Home Care, Inc.,Metropolitan Jewish Health System, Home First, Inc., and Beth Israel Medical Centerpursuant to CPLR 3126, inter alia, to strike the complaint for failure to comply withcourt-ordered discovery, and, in effect, denying the plaintiffs' cross motion, inter alia,pursuant to CPLR 3126, to strike the answers, upon the plaintiffs' failure to appear at oralargument, and (2) a judgment of the same court dated September 4, 2013, which, uponthe order dated May 31, 2013, is in favor of the defendants and against them dismissingthe complaint.
Ordered that the appeal from the order dated May 31, 2013, is dismissed; and it isfurther,
Ordered that the judgment is reversed, on the facts and in the exercise of discretion,with one bill of costs payable by the respondents appearing separately and filing separatebriefs, the plaintiffs' motion to vacate the order dated November 15, 2012, is granted, theorder dated May 31, 2013, is modified accordingly, the complaint is reinstated, and thematter is remitted to the Supreme Court, Kings County, for oral argument and a newdetermination of the defendants' [*2]separate motionspursuant to CPLR 3126, inter alia, to strike the complaint, and the plaintiffs' crossmotion, inter alia, to strike the answers.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the orderare brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff Ganna Kramarenko, as administrator of the estate of Iosif Kumysh(hereinafter the decedent), together with the other plaintiffs, commenced this action onbehalf of the decedent and themselves to recover damages for medical malpractice,negligence, and violations of the Public Health Law. Thereafter, the defendants movedpursuant to CPLR 3126, inter alia, to strike the complaint based upon the plaintiffs'alleged failure to comply with court-ordered disclosure. In particular, the defendantscontended that the plaintiffs failed to provide certain outstanding authorizations to obtainmedical records and appear for depositions by a court-ordered deadline. They alsoasserted that the supplemental bills of particulars which were belatedly served by theplaintiffs failed to detail the specific acts of negligence attributable to each defendant.The plaintiffs submitted papers in opposition to the defendants' respective motions andcross-moved, inter alia, pursuant to CPLR 3126 to strike the defendants' answers.
Oral argument on the motions and the cross motion was scheduled for November 15,2012. According to the plaintiffs' attorney, he was present in the courtroom on that dateand was the only attorney in this case to answer the first calendar call. The plaintiffs'attorney then left the courtroom to argue a motion in an unrelated matter in a differentcourtroom. The plaintiffs' attorney was not present during the second calendar call and,when he returned, he learned that the court had granted the defendants' motions todismiss the complaint. The plaintiffs subsequently moved to vacate the order, and thatmotion was denied in an order dated May 31, 2013. The Supreme Court subsequentlyentered a judgment dated September 4, 2013, dismissing the complaint.
To vacate the order dated November 15, 2012, which was entered upon the plaintiffs'failure to appear at oral argument, the plaintiffs were required to demonstrate areasonable excuse for their default and a potentially meritorious opposition to thedefendants' motions (seeBrinson v Pod, 129 AD3d 1005, 1010 [2015]; Cohen v Romanoff, 83 AD3d989 [2011]). We agree with the plaintiffs that the Supreme Court improvidentlyexercised its discretion in denying their motion to vacate the order dated November 15,2012. "Whether a proffered excuse is reasonable is a sui generis determination to bemade by the court based on all relevant factors, including the extent of the delay, whetherthere has been prejudice to the opposing party, whether there has been willfulness, andthe strong public policy in favor of resolving cases on the merits" (Fried v Jacob Holding, Inc.,110 AD3d 56, 60 [2013] [internal quotation marks omitted]; see Brinson v Pod, 129 AD3d1005, 1008-1009 [2015]; Suede v Suede, 124 AD3d 869, 871 [2015]). Here, theplaintiffs had a reasonable excuse for failing to appear at oral argument in opposition tothe defendants' motions and in support of their own cross motion. The plaintiffssubmitted papers which demonstrated a reasonable excuse for the failure of their counselto appear during the second calendar call. Further, there is no evidence that the plaintiffs'default was willful, the plaintiffs expeditiously moved to vacate the default, and therewas no evidence that the plaintiffs intended to abandon this action or that the defendantswere prejudiced by the delay (see Brinson v Pod, 129 AD3d at 1009; Suede vSuede, 124 AD3d at 871-872; Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d656, 657 [2011]).
Moreover, in support of their motion to vacate the order, the plaintiffs adequatelydemonstrated a potentially meritorious opposition to the defendants' motions to dismissthe complaint for noncompliance with court-ordered disclosure, and a potentiallymeritorious position on their cross motion (see Brinson v Pod, 129 AD3d at1010; Lyubomirsky v LubovArulin, PLLC, 125 AD3d 614, 615 [2015]; Suede v Suede, 124 AD3d at872). Accordingly, the Supreme Court should have granted the plaintiffs' motion tovacate the order dated November 15, 2012, and the underlying motions and cross motionshould be decided by the Supreme Court on the merits following oralargument.
[*3] The parties' remainingcontentions either are without merit or need not be addressed in light of ourdetermination. Mastro, J.P., Leventhal, Roman and Barros, JJ., concur.