Brown v. Vora

Opinion

2026 IL App (1st) 251021-U FIRST DISTRICT, SIXTH DIVISION June 30, 2026

No. 1-25-1021

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________

ANGELA D. BROWN, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County, Illinois. v. ) ) No. 2024 L 007853 ANAND VORA, M.D. and ILLINOIS BONE AND ) JOINT INSTITUTE, LLC, an Illinois Limited ) Honorable Liability Company, ) Michael B. Barrett, ) Judge Presiding. Defendants-Appellants. ) _____________________________________________________________________________

JUSTICE GAMRATH delivered the judgment of the court. Presiding Justice C.A. Walker and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: We affirm the grant of plaintiff’s section 2-1401 petition where she established due diligence and a meritorious claim.

¶2 Plaintiff Angela D. Brown filed an action for medical malpractice against defendants

Anand Vora, M.D. and the Illinois Bone and Joint Institute (IBJ). After voluntarily dismissing

and refiling the suit in July 2024, Brown and her attorney failed to appear at the first case

management conference on September 18, 2024, resulting in dismissal of the complaint for want No. 1-25-1021

of prosecution. Brown discovered the dismissal in late October 2024. In early December 2024,

Brown filed a petition to vacate under section 2-1401 of the Code of Civil Procedure (Code) (735

ILCS 5/2-1401 (West 2024)), blaming an email address mix-up for her attorney’s absence at the

initial case management conference. The trial court granted the petition, reinstated the case, and

denied defendants’ motion to reconsider. Defendants appeal, arguing the trial court abused its

discretion in granting the petition. We affirm.

¶3 I. BACKGROUND

¶4 On February 15, 2023, Brown filed a medical malpractice complaint, which she

voluntarily dismissed on July 21, 2023. She refiled the action on July 16, 2024, alleging

negligent treatment arising from a September 17, 2020 right-ankle surgery that resulted in

complications, infection, and additional procedures. Her attorney, Bruce Slivnick, submitted an

affidavit stating he was unable to obtain the consultation required by section 2-622 of the Code

(735 ILCS 5/2-622(a)(1) (West 2024)) before the statute of limitations expired.

¶5 The initial case management conference was set for September 18, 2024. Electronic

notice was sent on August 15, 2024 to the email address listed on the refiled complaint. When

neither Brown nor Slivnick appeared, the court dismissed the case for want of prosecution.

¶6 On December 6, 2024, Brown filed a section 2-1401 petition to vacate the dismissal,

supported by Slivnick’s affidavit. He averred that he had changed his email address in February

2024 and set up forwarding from his old account, but the forwarding stopped in July 2024

without his knowledge. As a result, notice of the September 18 conference went to his old

address, and he was unaware of the hearing. Slivnick further stated that from September through

October 2024 he was actively seeking an expert for the section 2-622 report. Brown had

undergone another surgery in July 2024, and information from that procedure was needed for a

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complete review of the alleged malpractice. At the end of October, while preparing to request an

extension for the section 2-622 report, he checked the docket and discovered the September 18

dismissal for want of prosecution.

¶7 Brown argued the email error was an excusable mistake and that she acted diligently by

moving to vacate approximately 45 days after learning of the dismissal. She also alleged a

meritorious claim, asserting the initial surgery failed to correct her ankle condition and caused

additional pain, infection, and removal of hardware.

¶8 On January 7, 2025, the trial court granted the petition and vacated the dismissal. Although

defendants had been served with the section 2-1401 petition, they had not been served with the

refiled complaint and did not appear at the hearing.

¶9 Defendants moved to reconsider the granting of Brown’s section 2-1401 petition, arguing

Brown lacked diligence because Slivnick continued using his old email address months after

adopting a new one and failed to check the docket when he received no notice of the initial hearing.

They also argued Brown’s 2024 surgery was irrelevant to whether she had a meritorious claim and

is not substitute for a section 2-622 report.

¶ 10 On May 6, 2025, the trial court denied the motion to reconsider. A bystander’s report

reflects the court’s findings that Slivnick listed an outdated email address on the refiled complaint

and that the circuit court’s longstanding practice is to set initial case management conferences 45

to 60 days after filing. The court found that Brown’s 2024 surgery did not justify delaying the

section 2-622 report but denied reconsideration “based on considerations of justice and equity.”

The court ordered Brown to file the section 2-622 report by May 13, 2025, which she did.

Defendants appeal.

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¶ 11 II. ANALYSIS

¶ 12 Section 2-1401 permits relief from final orders and judgments more than 30 days, but less

than two years, after their entry. 735 ILCS 5/2-1401 (West 2024). To obtain relief, the petitioner

must prove by a preponderance of the evidence: (1) a meritorious defense or claim in the original

action; (2) due diligence in pursuing that defense or claim; and (3) due diligence in presenting

the section 2-1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). The purpose of

a section 2-1401 petition is to bring to the circuit court’s attention facts that, had they been

known when judgment was entered, would have prevented its entry. Department of Conservation

v. Cipriani, 202 Ill. App. 3d 986, 990 (1990). Where, as here, the petitioner raises a fact-based

challenge to the judgment, we review the circuit court’s ruling for an abuse of discretion. Warren

County Soil and Water Conservation District v. Walters, 2015 IL 117783, ¶ 52.

¶ 13 Due diligence requires the petitioner to show that her inaction resulted from an excusable

mistake and that she acted reasonably, rather than negligently, in failing to pursue the action.

Salazar v. Wiley Sanders Trucking Co., Inc., 216 Ill. App. 3d 863, 871 (1991). There is no

bright-line rule for due diligence; instead, it is a reasonableness inquiry based on all surrounding

circumstances, including the conduct of the litigants and their attorneys. Id.; Paul v. Gerald

Adelman & Associates, Ltd., 223 Ill. 2d 85, 99-100 (2006).

¶ 14 Defendants contend the “email snafu” was the product of Slivnick’s negligence and

carelessness, not an excusable mistake. We disagree. Although Slivnick used an old email

address on the refiled complaint, he reasonably believed emails were being forwarded to his new

address, as they had been without incident since February 2024. He had no notice that

forwarding had stopped. And while Slivnick arguably could have checked the docket sooner, his

conduct did not rise to negligence warranting dismissal of Brown’s complaint.

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¶ 15 Nor was Slivnick sitting idle. He was working to obtain a section 2-622 report in support

of Brown’s complaint. Once he discovered the dismissal for want of prosecution at the end of

October 2024, he filed the section 2-1401 petition approximately 45 days later. Considering all

the circumstances, Slivnick’s conduct did not amount to “negligence and indifference” (see

Airoom, 114 Ill. 2d at 225), and he acted diligently both in pursuing Brown’s claim and in filing

the section 2-1401 petition. See, e.g., National Experiential, LLC v. 601 W Companies, LLC,

2023 IL App (1st) 220716-U, ¶¶ 13, 39 (registered agent’s failure to forward summonses and

filings, coupled with inadvertent transfer of emails to a corrupted folder, constituted an excusable

mistake).

¶ 16 Brown also sufficiently pleaded a meritorious claim. To establish a meritorious claim, the

petition and supporting affidavit must plead relevant facts supporting the claim. People ex rel.

McGraw v. Mogilles, 136 Ill. App. 3d 67, 73 (1985). A “cursory recapitulation of the allegations

in the complaint” is sufficient; the plaintiff “need not repeat the allegations in [the] complaint to

show that [she has] a meritorious claim.” Cruz v. Columbus-Cuneo-Cabrini Medical Center, 264

Ill. App. 3d 633, 640 (1994).

¶ 17 In her petition, Brown alleged that she had a meritorious claim arising from her failed

right-ankle surgery and the resulting pain, infection, and subsequent surgery to remove the

hardware placed during the first procedure. Her complaint expands on those facts, alleging that

these complications resulted from defendants’ failure to properly perform the initial surgery,

properly remove or replace the hardware to prevent complications and infection, and timely

diagnose and treat her condition. The facts pleaded in Brown’s complaint and section 2-1401

petition are sufficient to establish a meritorious claim. See id. (plaintiff set forth sufficient facts

in first amended complaint and section 2-1401 petition to establish meritorious claim).

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¶ 18 Defendants argue that Brown’s failure to attach a section 2-622 report to her petition and

complaint necessarily defeats any showing of a meritorious claim. We disagree. Under section 2-

622 of the Code, a medical malpractice complaint must include an affidavit from the plaintiff’s

attorney stating that the attorney consulted with a healthcare professional who believes there is

reasonable and meritorious cause for filing the action, along with the healthcare professional’s

written report setting forth the basis for that determination. 735 ILCS 5/2-622(a)(1) (West 2024).

Alternatively, the attorney may aver that the required consultation “could not be obtained before

the expiration of the statute of limitations,” and may file the report within 90 days of filing the

complaint. Id. §2-622(a)(2).

¶ 19 In 1995, section 2-622(a)(2) was amended to preclude a plaintiff from obtaining the 90-

day extension if the plaintiff had previously dismissed the same, or substantially the same, cause

of action. O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421, 426 (2009). In

1997, however, the amendatory Act that added this limitation was declared void in its entirety.

Id. After confusion arose over which version of section 2-622 remained in effect, our supreme

court held in O’Casek that the pre-1995 version controls. Thus, a plaintiff who voluntarily

dismisses and refiles an action may still avail herself of the 90-day extension under section 2-

622(a)(2). Id. at 450. Reliance on Beauchamp v. Zimmerman, 359 Ill. App. 3d 143 (2005), is

misplaced, as it applied the superseded version of section 2-622 and was overruled by O’Casek,

229 Ill. 2d at 438-39, 447. Slivnick’s affidavit, attached to Brown’s refiled complaint, stated that

he could not obtain the required consultation with a healthcare professional before the limitations

period expired. That procedure is permitted under section 2-622(a)(2) and O’Casek and does not

undermine the viability of Brown’s claim.

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¶ 20 Finally, defendants contend the circuit court abused its discretion by relying on principles

of equity and justice in denying their motion to reconsider. But section 2-1401 is grounded in

those very principles. See Glavinskas v. William L. Dawson Nursing Center, Inc., 392 Ill. App.

3d 347, 353 (2008) (citing Paul, 223 Ill. 2d at 95). It would be fundamentally unfair to dismiss

Brown’s meritorious claim because of an excusable mistake that was diligently corrected. The

court’s invocation of equity and justice was reasonable and did not constitute an abuse of

discretion.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 23 Affirmed.

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