Akler v. Booth Memorial Medical Center

257 A.D.2d 640, 684 N.Y.S.2d 294, 1999 N.Y. App. Div. LEXIS 634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1999
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Main Street Ob/Gyn Associates, P. C., appeals from an order of the Supreme Court, Queens County (Milano, J.), dated January 29, 1998, which denied its motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Main Street Ob/Gyn Associates, P. C., and the action against the remaining defendants is severed.

The defendant Main Street Ob/Gyn Associates, P. C., moved to dismiss the complaint insofar as asserted against it on the ground that the plaintiffs failed to enter a judgment against it upon its default in answering or appearing within one year of the default pursuant to CPLR 3215. To avoid dismissal of a complaint under such circumstances a plaintiff “must offer a reasonable excuse for the delay and demonstrate the merits of the complaint” (Richards v Lewis, 243 AD2d 615, 616; see, First Nationwide Bank v Pretel, 240 AD2d 629; Ingénito v Grumman Corp., 192 AD2d 509). In opposition to the appellant’s motion, the plaintiffs failed to submit any evidence demonstrating the merits of their action (see, Mosberg v Elahi, 80 NY2d 941; cf, Hoffmann v Salitan, 203 AD2d 91, 92). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.