Imperato v Mount Sinai Med. Ctr.

Imperato v Mount Sinai Med. Ctr. 2011 NY Slip Op 01532 Decided on March 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 1, 2011
Sweeny, J.P., Catterson, Moskowitz, Renwick, Richter, JJ.
3776 110727/07

[*1]Maryann Imperato, et al., Plaintiffs-Respondents,

v

The Mount Sinai Medical Center, et al., Defendants-Appellants.




Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Richard Ng of counsel), for appellants.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of
counsel), for respondents.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered May 5, 2010, which granted plaintiffs' motion to vacate an order precluding their expert witness from testifying at trial and denied defendants' motion to dismiss the case, unanimously affirmed, without costs.

Plaintiffs' counsel's debilitating illness, coupled with "law office failure," was a reasonable excuse warranting relief from the preclusion order entered on default (see Frenchy's Bar & Grill v United Intl. Ins. Co., 251 AD2d 177, 177-718 [1998]). Plaintiffs' expert witness disclosure sufficiently delineated defendants' alleged departures from accepted medical practice and their causal connection to plaintiffs' injuries (Ford v Empire Med. Group, 123 AD2d 820, 821-822 [1986]; see also Levy v New York City Hous. Auth., 287 AD2d 281 [2001]). Moreover, there is no evidence that the failure to timely disclose was willful, contumacious or manifested bad faith (Tsai v Hernandez, 284 AD2d 116, 117 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2011

CLERK