Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered March 18, 2010.
Schoen v Brooklyn Anesthesia Research, P.C.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 22, 2012
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The order denied a motion by defendants Nabendu Pandey, M.D., and Long Island College Hospital to dismiss the complaint pursuant to CPLR 3215 (c) or, in the alternative, to open their default, vacate a judicial hearing officer's report and vacate the notice of trial.
ORDERED that the order is modified by providing that the branches of the motion by defendants Nabendu Pandey, M.D., and Long Island College Hospital seeking to open their default and vacate the judicial hearing officer's report are granted, and the action is restored to the trial calendar; as so modified, the order is affirmed, without costs.
Plaintiff commenced this medical malpractice action against, among others, defendants Nabendu Pandey, M.D., and Long Island College Hospital (defendants). It is undisputed that defendants failed to appear for trial after several adjournments. The Civil Court directed that an inquest be held before a judicial hearing officer who would hear and determine. The inquest was held on July 19, 2005, in defendants' absence, and, in a document entitled "Hearing and Report," the judicial hearing officer awarded plaintiff the sum of $57,052. Almost four years after their default, defendants moved to dismiss the complaint pursuant to CPLR 3215 (c) on the ground that plaintiff had not entered a judgment within one year of the default. In the alternative, they moved to open their default, vacate the judicial hearing officer's report, and vacate the notice of trial. In support of the motion, defendants' counsel alleged that his office has no record of being notified of the dates scheduled for trial or the inquest. In addition, defendants submitted an affirmation of a board certified physician, who opined that defendants had not deviated from standard medical procedures when treating plaintiff. The Civil Court denied defendants' motion.
Contrary to defendants' contention, CPLR 3215 (c) is not applicable here since plaintiff did not fail to take proceedings for the entry of judgment within one year of defendants' default. The record establishes that the inquest was conducted within one year of the default (see Cohen v Michelle Tenants Corp., 63 AD3d 1097 ; Bank of NY v Gray, 228 AD2d 399 ; Johnson v Noel, 21 Misc 3d 134[A], 2008 NY Slip Op 52190[U] [App Term, 2d & 11th Jud Dists 2008]).
In our view, defendants asserted a reasonable excuse for their default in appearing for the trial and the inquest, and they asserted a meritorious defense to the action (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ). Accordingly, the branches of the motion seeking to open their default and vacate the judicial hearing officer's report are granted, and the action is restored to the trial calendar.
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February ...