Imperato v Mount Sinai Med. Ctr.

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Imperato v Mount Sinai Med. Ctr. 2010 NY Slip Op 33755(U) April 30, 2010 Supreme Court, New York County Docket Number: 110727/07 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 51512010 [* 1] e/ $ / / SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY I MOTION SEO. NO. T h o following psperc, numbored 1 to woro rend o n 0 3 tills m o t i o n to/for Affidavits - E x h i b l t ~... Notice of --Affidavits - Exhibits " Answering Raplying Affidavits C rpss-Mo tion : d y e s a NQ Upon the forogoing papers, It is ordered thet this motion T tK 0 LL Dated: Clieck one: J. s. c. 0 FINAL Check if appropriate: DISPOSITION W ~ O - FINA L N DO N O J POST D I s Po sI TI o N U REFERENCE. [* 2] Index No.1 10727/07 Plaintiffs, -against- Peckion and Order MOUNT SINAI MEDICAL CENTER and MICHAEL A. PALESE, M.D. Plaintiffs move, by order to show cause, for an order vacating this court's prior order, dated November 24, 2009, which precluded plaintiffs from offering expert testimony at trial. Defendants cross-move for an order dismissing the c a ~ against defendants with prejudice. For the e reasons stated below, the motion is granted and the cross-motion is denied. This action sounding in medical malpractice was commenced by the filing of a Summons and complaint in August 2007. The parties appeared for a preliminary conference in October 2007 and several compliance and status conferences thereafter, The note of issue WBS filed on or about March 30,2009. Thereafter,defendants moved to vacate the note of issue. Defendants' motion was granted on default by a decision and order signed on June 29,2009; a new note of issue was filed the next day. The parties appeared for a pre-trial conference on July 21,2009 and the trial was scheduled for November 9, 2009, to begin jury selection. Plaintiffs and defendants were directed to exchange their expert disclosures no later than forty-five (45) days before trial (September 25,2009) and thirty (30) days before trial (October 9,2009), respectively. The parties appeared for a subsequent pre-trial conference followed by a telephone conference, during which plaintiffs sought [* 3] an adjournment because of the needs of their expert. To accommodate plaintiffs request, the court adjourned the trial to December 7,2009. The date by which plaintiffs and defendants needed to exchange their expert disclosure was extended to October 16, 2009 and November 6, 2009, respectively. After plaintiffs failed to exchange their expert disclosure by October 16, on or about October 23 defendants moved, by order to show cause, to compel pldntiffs to exchange their expert disclosures or preclude plaintiffs from using expert testimony at trial. On the return date of that application, the court permitted plaintiffs additional time to submit opposition papers and to serve their expert disclosure. After plaintiffs again defaulted, in a written decision signed on November 24,2009, the court precluded plaintiffs h m offering expert testimony at trial. Notwithstanding the preclusion order, defendants appeared before the court on the trial date; plaintiffs did not. Plaintiffs now ask the court to vacate the preclusion order. Their papers include a C.P.L.R.9 3 101(d) response, which gives reasonabledetail as to the matters about which their expert will testify. Plaintiffs counsel, Ira. C. Podlofsky, Esq., submits an aflldavit in support ofhis clients motion in which he maintains that personal problem and inadequate staffing led him to neglect this action. H asks that his personal illness and lack of oversight of this matter provide an excuse for e his default. Plaintiffs argue that the information in their 3101(d) notice establishes that their claims are meritorious. Defendantsargue that plaintiffs repeated failure to comply wt court orders should ih not be overlooked; that plaintiffs have presented neither a reasonable excuse for the delay nor a meritorious cause of action; and that defendants motion to dismiss must be granted if plaintiffs preclusion order stands. -2- [* 4] "Ncw York's public policy strongly favors litigating mattcrs (311 the nicrits." I-nmar v. City o :w York, 68 A.D.3d 449, 449 (1st Dcp't 2009) (citation omittcd). As long as tllc previously dcliiiilting movant has inadc ; showing ofrcasonnblc cscusu and mcritorious claims, thc 1 v. case \vi11 continue. R u ~ i e r i Bannislcr, 7 N.Y.3d 742. 744 (2006). I Icrc. thc laiv office hilurc caused by plaintilTs' counsells illnuss a i d thc rcsuliing lack of nttciitiori to the litigation shall-in an csercisc of discrction-be 3 10 I(d) noticc. considcrcd a rcasonablc csciise for SCc Cliclli v. Kellv Groui,, lliu l'ailurc to timely serw thc P.C., 63 A.D.3d 632, 633 ( I sl Dcp't 2009). The Iioticc attachcd-rilthougli not sigiicd by thc cspcrt-is sufficictit to cstablisli Ilia1 tlic casc Iins merit. Thcrc has bctn no sustaincd period of blatant disrcgard of court ordors and dcl'cndants have iiot dcmonstratcd prcjudice. See Barbour if. I-Iosnitnl for Special Stirw-,f. 169 A.D.3d 385, 356 (1st Dep'l 1991). Upon the condition below bcing satisfied, the order ofprcclusion is vacated and tlic aniiexcd C.P.L.R. 4 3 101(d) noticc is dcoiiicd scrved. The cross-iiiolioii to dismiss is denied. Finally, the vaciltcur ol'thc Imclusion order is condiiionccl upon plaintiff's paynicnt of $1 00 in costs lo dcl'cndants, within thirty (30) days of tlic date ol'tliis dccision and order, in licu ol'a sanction Iinding and payiiicnt to tlic Lawycrs' Fund for Clicnt I'rotcclion.

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