Torrado v. Lutheran Medical Center

170 A.D.2d 666, 567 N.Y.S.2d 86, 1991 N.Y. App. Div. LEXIS 3241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1991
• Status: Published

Opinion

In a medical malpractice action to recover damages for wrongful death, etc., the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Bellard, J.), dated May 25, 1989, which conditionally vacated the defendant’s default in appearing for trial, and (2) an order of the same court, dated August 16, 1989, which, in effect, granted the defendant’s motion for renewal and afforded the defendant the opportunity to add to the record an affidavit of merit.

Ordered that the appeal from the order dated May 25, 1989, is dismissed, as that order was superseded by the order dated August 16, 1989, made upon renewal; and it is further,

Ordered that the order dated August 16, 1989, is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting renewal and thereby adding to the record an affidavit of merit (see, CPLR 5501 [a] [1]). Although the defendant should have explained its failure to include a physician’s affidavit of merit as part of its original motion to vacate its default, the court nevertheless retained the "discretionary power * * * to grant renewal even if the facts were known, but were not presented to the court at the time the original motion was heard” (2A Weinstein-Korn-Miller, NY Civ Prac ¶ 2221.03, at 22-132, 22-133; Sciascia v Nevins, 130 AD2d 649; Weisse v Kamhi, 129 AD2d 698). Mangano, P. J., Kunzeman, Eiber and Balletta, JJ., concur.