Jones v Wong

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Jones v Wong 2020 NY Slip Op 30395(U) February 4, 2020 Supreme Court, New York County Docket Number: 850260/2014 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 02/05/2020 10:19 AM NYSCEF DOC. NO. 59 INDEX NO. 850260/2014 RECEIVED NYSCEF: 02/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 6 ----------------------------------------------------------------------)( Index No. 850260/2014 LEONARD JONES, Plaintiff, Decision and Order -againstMICHAEL WONG, M.D., WEN C. YANG, M.D., AND LENO)( HILL HOSPITAL, Mot. Seq. 2 Defendants. -----------------------------------------------------------------------)( HON. EILEEN A. RAKOWER, J.S.C. By Notice of Motion filed on November 1, 2019, Plaintiff moves pursuant to CPLR §§5015 and 2221 to vacate the Court's October 11, 2019 default order which ·granted summary judgment to Defendants and/or to renew the summary judgment motion. Defendants oppose. Background This medical malpractice action was commenced by the filing and service of a summons and complaint on or about August 15, 2014. Issue was joined by the service of Answers on or about September 17, 2014 and October 2, 2014. Discovery proceeded. Plaintiffs deposition was held on May 15, 2018 and Defendants' depositions were held on February 1, 2019 and June 27, 2019. Plaintiff filed the note of issue on June 5, 2019. Defendants filed their summary judgment motion by Order to Show Cause on August 2, 2019, which was made returnable before the Court on October 11, 2019. Defendants' motion was supported by the expert affirmation of Howard Silberstein, M.D. Plaintiff was ordered to serve opposition papers on or before September 16, 2019 and Defendants were ordered to serve reply papers, if any, on or before October 2, 2019. Oral argument was scheduled on October 11, 2019. 1 2 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 02/05/2020 10:19 AM NYSCEF DOC. NO. 59 INDEX NO. 850260/2014 RECEIVED NYSCEF: 02/05/2020 On October 11, 2019, counsel for both parties appeared on the return date of the Order to Show Cause. Oral argument was heard on the record. The Court found that Defendants had made a prima face showing regarding their claims. The Court noted that Plaintiff did not submit opposition papers or an expert affirmation that rebutted Defendants' claims. Plaintiffs counsel requested an adjournment to submit their opposition. The Court stated that "[i]t's a little late right now to ask for time to try to get an affirmation in opposition." The Court noted that the motion was served on Plaintiff in early August. The Order was entered by the Clerk's Office on October 15, 2019, and Plaintiff was thereafter served with Notice of Entry by regular mail. In the pending motion, Plaintiffs counsel states that on October 10, 2019, he called the Court to request permission to adjourn the motion by stipulation. Plaintiffs counsel states that the Court advised him that it would not accept a stipulation. Plaintiffs counsel states that on October 11, 2019, his office retained per diem counsel in order to request and obtain an adjournment of Defendants' motion so that Plaintiffs counsel could "continue working with its expert to finalize a physician's affirmation to use in conjunction with its opposition to the defendant's motion in this complex medical malpractice case." Defendants' counsel states that they did not receive any request for an extension prior to the date of oral argument. Parties' Contentions Plaintiff argues that the October 11, 2019 Order should be vacated because Plaintiff has a reasonable excuse for his default. Plaintiff argues that "the Court should find that plaintiffs (sic) has a reasonable excuse for its default in that plaintiffs counsel was simply requesting an adjournment of the motion so that it could finalize an affidavit from a physician in opposition to [the] motion for summary judgment in a complex medical malpractice action." Plaintiffs counsel argues that the "default was in no way willful or deliberate," and Plaintiff "had every intention of opposing the motion." Plaintiffs counsel states that he has now annexed a copy of opposition papers, including an affidavit from a board certified neurologist who opines that there were departures of care in the treatment provided to Plaintiff. Plaintiffs counsel further argues that "his per diem attorney was ill-equipped to sufficiently explain the complexities of the physician's affirmation that was required to oppose the defendant's motion when he was so unexpectedly confronted with an outright refusal to consider an adjournment of a motion on for the first time 2 3 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 02/05/2020 10:19 AM NYSCEF DOC. NO. 59 INDEX NO. 850260/2014 RECEIVED NYSCEF: 02/05/2020 in the newly created Central Motion Part." 1 Plaintiffs counsel states that he "did not even learn of this situation until after the fact." In addition to a reasonable excuse, Plaintiff states that he has a meritorious cause of action as demonstrated by the affirmation of his expert. In the alternative, Plaintiff requests renewal of Defendants' motion for summary judgment based on the new facts not offered at the time of the default which are contained in Plaintiffs expert affirmation. Defendants argue that Plaintiffs motion should be denied because it should have been brought by Order to Show Cause. Defendants further argue that Plaintiff has failed to demonstrate a reasonable excuse required under CPLR §5015. Defendants argue that Plaintiffs counsel has failed to specify any facts as to why he was unable to obtain an expert affirmation within the timelines set forth in the Court's order. Defendants further argue that Plaintiffs request for an extension of time to submit opposition papers was "too late." Defendants' cotinsel states that they did not receive any request for an extension prior to oral argument. Defendants further argue that Plaintiffs default should not be excused because of the per diem counsel that Plaintiffs counsel retained on Plaintiffs behalf. Legal Standards Pursuant to CPLR § 5015, the court which rendered a decision may, on motion, grant relief from the judgment or order upon the ground of "excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry." (CPLR § 5015[a][l]). In order to prevail on a motion to vacate a default judgment upon the ground of excusable default under § 5015, the moving party must show that its default was "excusable" and demonstrate a "meritorious defense" to the underlying action.'(Pena v. Mittleman, 179 AD2d 607, 609 [1st Dept 1992]; Mutual Marine Office, Inc. v. Joy Const., 39 AD3d 417 [1st Dept 2007]). 1 In Plaintiffs reply papers, Plaintiff states "the language in the motion papers concerning the 'new motion part' were submitted in error." 3 4 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 02/05/2020 10:19 AM NYSCEF DOC. NO. 59 INDEX NO. 850260/2014 RECEIVED NYSCEF: 02/05/2020 CPLR § 2221 (e) (2) provides that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination." "As a matter of general policy, disposition of controversies on the merits is favored." (Warbett v. Polakoff, 250 N.Y.S.2d 633, 634 [1st Dept 1964]). Discussion Plaintiff now submits an expert affirmation that is non conclusory and responsive to movant's expert affirmation. While the Court is loath to condone sloppy practices by lawyers, in light of the presentation of this affirmation and the public policy that controversies be resolved on the merits, the Court's Order dated October 11, 2019 which granted Defendants' motion for summary judgment is vacated. Wherefore it is hereby ORDERED that the Court's Order dated October 11, 2019 which granted Defendants' motion for summary judgment is vacated; and it is further ORDERED that Plaintiffs expert affirmation shall be considered the opposition to Defendants' motion for summary judgment; and it is further ORDERED that Defendants shall submit reply papers on or before March 4, 2020; and it is further ORDERED that oral argument on Defendants' motion for summary judgment shall proceed on March 10, 2020, at 2:00 PM. This constitutes the Decision and Order of the Court. All other relief requested is denied. Dated: FEBRUARY1_, 2020 Eileen A. Rakow~ J.S.C. 4 5 of 5

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