Giscombe v. Flatbush General Hospital

133 A.D.2d 666, 519 N.Y.S.2d 837, 1987 N.Y. App. Div. LEXIS 51707

Opinion

In a negligence action to recover damages for personal injuries, etc., the defendant Flatbush General Hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated November 21, 1985, as, upon renewal and reargument, adhered to its prior determination in an order dated January 16, 1985, vacating a default judgment entered against the plaintiffs, reinstated the action, and directed the appellant to accept the plaintiffs’ bill of particulars.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs’ proffered excuse for failing to appear on the motion for summary judgment based upon their alleged failure to serve a bill of particulars in compliance with a consent order was that their attorney moved to a new office and did not receive the motion papers addressed to her at her former office. The reasonableness of the excuse proffered and whether the plaintiffs made an adequate showing that their claim has legal merit are issues left to the sound discretion of the court of first instance. At bar, Special Term conducted a hearing at which the attorney for the plaintiffs testified concerning the reasons for the alleged default. The adequacy of the plaintiffs’ excuse rested upon an issue of credibility which was primarily for the hearing court, which had the benefit of hearing and seeing the witness, to resolve. Special Term resolved the issue in favor of the plaintiffs and we decline to disturb its findings. Furthermore, the plaintiffs have adequately made out the merits of their claim. Upon our review of the record, we perceive no abuse of discretion in Special Term’s vacatur of the default judgment. Accordingly, we affirm.

We have considered the parties’ remaining arguments and find them to be without merit. Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur.