Perez v. Astoria General Hospital, Inc.

Appellate Division of the Supreme Court of New York

Perez v. Astoria General Hospital, Inc.

251 A.D.2d 308, 674 N.Y.S.2d 387, 1998 N.Y. App. Div. LEXIS 6334

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 1998

StatusPublished

This text of 251 A.D.2d 308 (Perez v. Astoria General Hospital, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perez v. Astoria General Hospital, Inc., 251 A.D.2d 308, 674 N.Y.S.2d 387, 1998 N.Y. App. Div. LEXIS 6334 (N.Y. Ct. App. 1998).

Pincite

Opinion

—In an action to recover damages for medical malpractice, the defendant Astoria General Hospital, Inc., appeals, and the defendant Bhupendra R. Patel, M.D., individually and d/b/a Broadway Cardiopulmonary, P. C., separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated June 19, 1997, as granted that branch of the plaintiffs’ motion which was to vacate the dismissal of the complaint insofar as asserted against the appellants, based on the plaintiffs’ failure to appear at a pre-trial conference.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and that branch of the plaintiffs’ motion which was to vacate the dismissal of the complaint insofar as asserted against the appellants is denied.

To vacate the dismissal of the complaint insofar as asserted against the appellants due to their default in appearing at a scheduled pretrial conference, the plaintiffs had to proffer evidence of a reasonable excuse for the default and a meritorious cause of action (see, Martinez v Otis El. Co., 213 AD2d 523; Brown v Ryder Truck Rental, 172 AD2d 477). Although the court did not improvidently exercise its discretion in excusing the plaintiffs’ default resulting from law-office failure (see, CPLR 2005; Brown v Ryder Truck Rental, supra), the affidavit of the plaintiffs’ medical expert in the instant case was insufficient to demonstrate a meritorious cause of action against the appellants. In his affidavit, the expert failed to state with specificity his observations as to procedures or treatments performed and/or the alleged deviations from the acceptable standards of medical care by the appellants (see, Iazzetta v Vicenzi, 243 AD2d 540; Nepomniaschi v Goldstein, 182 AD2d 743; Barton v Jablon, 181 AD2d 755; Wulster v Rubinstein, 126 AD2d 545; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur. [See, — AD2d —, Apr. 12, 1999.]

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—In an action to recover damages for medical malpractice, the defendant Astoria General Hospital, Inc., appeals, and the defendant Bhupendra R. Patel, M.D., individually and d/b/a Broadway Cardiopulmonary, P. C., separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated June 19, 1997, as granted that branch of the plaintiffs’ motion which was to vacate the dismissal of the complaint insofar as asserted against the appellants, based on the plaintiffs’ failure to appear at a pre-trial conference.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and that branch of the plaintiffs’ motion which was to vacate the dismissal of the complaint insofar as asserted against the appellants is denied.

To vacate the dismissal of the complaint insofar as asserted against the appellants due to their default in appearing at a scheduled pretrial conference, the plaintiffs had to proffer evidence of a reasonable excuse for the default and a meritorious cause of action (see, Martinez v Otis El. Co., 213 AD2d 523; Brown v Ryder Truck Rental, 172 AD2d 477). Although the court did not improvidently exercise its discretion in excusing the plaintiffs’ default resulting from law-office failure (see, CPLR 2005; Brown v Ryder Truck Rental, supra), the affidavit of the plaintiffs’ medical expert in the instant case was insufficient to demonstrate a meritorious cause of action against the appellants. In his affidavit, the expert failed to state with specificity his observations as to procedures or treatments performed and/or the alleged deviations from the acceptable standards of medical care by the appellants (see, Iazzetta v Vicenzi, 243 AD2d 540; Nepomniaschi v Goldstein, 182 AD2d 743; Barton v Jablon, 181 AD2d 755; Wulster v Rubinstein, 126 AD2d 545; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur. [See, — AD2d —, Apr. 12, 1999.]

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251 A.D.2d 308, 674 N.Y.S.2d 387, 1998 N.Y. App. Div. LEXIS 6334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-astoria-general-hospital-inc-nyappdiv-1998.

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