Wynter v. Our Lady of Mercy Medical Center

Appellate Division of the Supreme Court of New York

Wynter v. Our Lady of Mercy Medical Center

2017 NY Slip Op 4362, 151 A.D.3d 414, 52 N.Y.S.3d 856

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

DecidedJune 1, 2017

Docket23492/91 3923A 3923

StatusPublished

This text of 2017 NY Slip Op 4362 (Wynter v. Our Lady of Mercy Medical Center) 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

Wynter v. Our Lady of Mercy Medical Center, 2017 NY Slip Op 4362, 151 A.D.3d 414, 52 N.Y.S.3d 856 (N.Y. Ct. App. 2017).

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Opinion

Judgments, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered September 15, 2015 and September 24, 2015, dismissing the complaint as against defendants New York City Health and Hospitals Corporation, Stephen Weitz, M.D., Our Lady of Mercy Medical Center, Patricia Scanlon, M.D., and Jerry Balentine, M.D., unanimously affirmed, without costs.

*415 Notwithstanding the strong public policy of this State to decide cases on the merits and our previous recognition of the potential merit of plaintiffs’s claims (see Wynter v Our Lady of Mercy Med. Ctr., 3 AD3d 376 [1st Dept 2004]), the motion court providently exercised its discretion in denying vacatur of plaintiffs’ default at the May 20, 2013 and July 24, 2013 court conferences. Bearing in mind the principle that “ultimately it was plaintiff’s duty to prosecute its case” (Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 481 [1st Dept 2011], lv dismissed 17 NY3d 922 [2011], lv dismissed 19 NY3d 898 [2012]), we find plaintiffs failed to provide a reasonable excuse for their various failures to prosecute their claims after this case was restored by this Court in 2004, including the failure to appear at the 2013 conferences at issue on this appeal that resulted in the dismissal of this action pursuant to the Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (b).

Concur—Richter, J.R, Andrias, Moskowitz, Feinman and Kapnick, JJ.

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Judgments, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered September 15, 2015 and September 24, 2015, dismissing the complaint as against defendants New York City Health and Hospitals Corporation, Stephen Weitz, M.D., Our Lady of Mercy Medical Center, Patricia Scanlon, M.D., and Jerry Balentine, M.D., unanimously affirmed, without costs.

*415 Notwithstanding the strong public policy of this State to decide cases on the merits and our previous recognition of the potential merit of plaintiffs’s claims (see Wynter v Our Lady of Mercy Med. Ctr., 3 AD3d 376 [1st Dept 2004]), the motion court providently exercised its discretion in denying vacatur of plaintiffs’ default at the May 20, 2013 and July 24, 2013 court conferences. Bearing in mind the principle that “ultimately it was plaintiff’s duty to prosecute its case” (Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 481 [1st Dept 2011], lv dismissed 17 NY3d 922 [2011], lv dismissed 19 NY3d 898 [2012]), we find plaintiffs failed to provide a reasonable excuse for their various failures to prosecute their claims after this case was restored by this Court in 2004, including the failure to appear at the 2013 conferences at issue on this appeal that resulted in the dismissal of this action pursuant to the Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (b).

Concur—Richter, J.R, Andrias, Moskowitz, Feinman and Kapnick, JJ.

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Bluebook (online)

2017 NY Slip Op 4362, 151 A.D.3d 414, 52 N.Y.S.3d 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynter-v-our-lady-of-mercy-medical-center-nyappdiv-2017.

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