New York Medical Malpractice

Murray v. New York City Health & Hospitals Corporation June 24th, 2008 WARNING
The 2d. Department upheld the dismissal of plaintiff’s action for wrongful death resulting from medical malpractice when the plaintiff’s counsel failed to appear for a final conference. The Court held;

“To be relieved of the default in appearing, the plaintiff was required to demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015[a][1]; Brownfield v Ferris, 49 AD3d 790; Zeltser v Sacerdote, 24 AD3d 541, 542; Solomon v Ramlall, 18 AD3d 461). The vague and unsubstantiated allegations of the plaintiff’s counsel regarding law office failure did not amount to a reasonable excuse (see St. Luke’s Roosevelt Hosp. v Blue Ridge Ins. Co., 21 AD3d 946, 947; Solomon v Ramlall, 18 AD3d 461; Fennell v Mason, 204 AD2d 599). The further allegations regarding law office failure contained in counsel’s affirmation that was submitted for the first time in the reply papers of the plaintiff’s motion, in effect, for leave to reargue were properly rejected by the court (see Parkin v Ederer, 27 AD3d 633; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355). Furthermore, the plaintiff failed to submit an affidavit of merit from a medical expert (see Mosberg v Elahi, 80 NY2d 941; Salch v Paratore, 60 NY2d 851, 852; Hassell v New York Univ. Med. Ctr., 48 AD3d 632; Yushavayev v Kopelman, 307 AD2d 996; Burke v Klein, 269 AD2d 348). Accordingly, the Supreme Court properly granted the defendant’s motion for leave to enter judgment against the plaintiff and properly denied those branches of the plaintiff’s cross motion which were to vacate the dismissal of theaction and to restore the action to active status.”

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If you don’t show up you better have a good excuse, move to vacate immediately and obviously in a medical malpractice case annex an affidavit of merit. From the dates in the opinion it appears plaintiff may have waited a considerable time before moving to vacate the dismissal.