Rodriguez v. New York Methodist Hospital

3 A.D.3d 526, 770 N.Y.S.2d 735, 2004 N.Y. App. Div. LEXIS 492

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2004
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Patterson, J.), dated November 18, 2002, as denied their motion to vacate an order of the same court dated July 11, 2001, which granted the motion of the defendants Brooklyn Ob/ Gyn Assoc., PC., Herbert M. Lieber, and Jose R Quinones, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them upon their default in opposing the motion, and to restore the motion to the calendar.

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

The respondents moved pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them based on the plaintiffs’ failure to comply with court-ordered discovery. The Supreme Court granted the motion upon the plaintiffs’ default in opposing it.

The plaintiffs failed to demonstrate a reasonable excuse for their default in opposing the motion. Furthermore, the plaintiffs failed to offer any excuse for their repeated failure to comply with the Supreme Court’s discovery order and the respondents’ discovery demands. The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion since the plaintiffs failed to adequately explain their pattern of willful default and neglect (see CPLR 5015 [a] [1]; Clarke v United Parcel Serv., 300 AD2d 614, 615 [2002]; Wynne v Wagner, 262 AD2d 556 [1999]; Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]; Gannon v Johnson Scale Co., 189 AD2d 1052 [1993]). Santucci, J.P., Goldstein, Schmidt and Cozier, JJ., concur.