Jenkins v. Brookdale Hospital Medical Center

200 A.D.2d 611, 608 N.Y.S.2d 849, 1994 N.Y. App. Div. LEXIS 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1994
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, the defendants Brookdale Hospital Medical Center and Dr. Joel Benowitz appeal from an order of the Supreme Court, Kings County (Bellard, J.), dated March 21, 1991, which granted the plaintiffs’ motion to vacate their default in responding to a motion to preclude the introduction of certain evidence at trial, and denied their cross-motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

The court did not improvidently exercise its discretion in vacating the plaintiffs’ default which was caused by law office failure (see, CPLR 2005, 5015 [a] [1]; Giordano v Patel, 177 AD2d 468; Brown v Ryder Truck Rental, 172 AD2d 477). In addition, material issues of fact remain which require a trial. Bracken, J. P., Balletta, O’Brien and Pizzuto, JJ., concur.