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North Shore University Hospital At Manhasset, Respondent v. Kathleen Demartino

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


August 7, 2012

NORTH SHORE UNIVERSITY HOSPITAL AT MANHASSET, RESPONDENT,
v.
KATHLEEN DEMARTINO, INDIVIDUALLY AND AS PARENT AND/OR LEGAL GUARDIAN OF SABRINA DEMARTINO,
APPELLANT.
ALFRED DIGIROLOMO, JR., ESQ.,
NONPARTY-APPELLANT.

Consolidated appeals from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), entered June 2, 2010.

North Shore Univ. Hosp. At Manhasset v Demartino

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order, insofar as appealed from by defendant Kathleen DeMartino, individually and as parent and/or legal guardian of Sabrina DeMartino, upon defendant's motion to vacate a default judgment and upon an order granting that motion to the extent of setting the matter down for a traverse hearing, implicitly denied defendant's motion to open her default in appearing at the traverse hearing and to restore the matter to the traverse calendar, and denied the underlying motion to vacate the default judgment. The order, insofar as appealed from by nonparty-appellant Alfred DiGirolomo, Jr., Esq., upon his default in appearing at a sanctions hearing, granted a court's own motion to impose sanctions on him and directed him to pay $2,500 to the Lawyers' Fund for Client Protection.

ORDERED that the order, insofar as appealed from by defendant Kathleen DeMartino, individually and as parent and/or legal guardian of Sabrina DeMartino, is affirmed, without costs; and it is further,

ORDERED that the appeal by nonparty-appellant Alfred DiGirolomo, Jr., Esq., is dismissed.

This action to recover for medical services rendered to defendant's minor child was commenced by the service of a summons and verified complaint, by personal delivery to defendant, on December 27, 2001. Defendant did not answer or appear and, on March 22, 2002, a default judgment was entered. On September 15, 2008, defendant moved to vacate the default judgment. By order dated January 14, 2009, the court granted the motion to the extent of setting the matter down for a traverse hearing on February 27, 2009. Subsequently, the traverse hearing was adjourned to April 3, 2009, April 28, 2009, June 10, 2009 and July 29, 2009. By order dated July 29, 2009, the District Court removed the matter from the traverse calendar and directed defense counsel to appear on August 21, 2009 to show cause why sanctions should not be imposed against him. The order noted that the previous adjournments had been granted upon defense counsel's requests, and that the July 29, 2009 date had been marked as a final traverse date. The court further noted that, upon defense counsel's failure to appear, it had learned that defendant had misrepresented the nature of his engagement in another court as a trial, when the engagement was actually for a conference.

On August 20, 2009, defense counsel moved to open defendant's default in appearing at the traverse and to restore the matter to the traverse calendar. On August 21, 2009, defense counsel appeared before the District Court as directed and orally requested that the court reconsider its order directing him to show cause as to why he should not be sanctioned. On November 18, 2009, the District Court denied defendant's counsel's oral application to vacate the order directing him to show cause as to why he should not be sanctioned, and granted defendant's motion to the extent that it reserved decision, until after the sanctions hearing, on whether to restore the traverse to the calendar. The order set the sanctions hearing down for January 8, 2010. Subsequently, the matter was adjourned to February 3, 2010 and then again to March 8, 2010. The court advised defense counsel of the March 8, 2010 adjourned date; nevertheless, he did not appear on that date and the hearing was adjourned to March 23, 2010. On March 23, 2010, defense counsel failed to appear at either of the two calendar calls scheduled for that day. By order dated June 2, 2010, the District Court implicitly denied defendant's motion to open her default in appearing at the traverse hearing, denied defendant's application to vacate the judgment and directed defense counsel to pay sanctions in the amount of $2,500.

In our view, the District Court did not improvidently exercise its discretion in denying defendant's motion to open her default in appearing at the traverse hearing, as defendant did not show an adequate excuse for the default. The traverse hearing, originally scheduled for February 27, 2009, was adjourned on several occasions pursuant to defense counsel's request on the ground that he was engaged at trial in other courts, and was marked final for July 29, 2009. The District Court determined that, on that date, contrary to defendant's attorney's claim, he was not actually engaged in a trial elsewhere. Moreover, even after the matter was stricken from the traverse calendar based upon defense counsel's failure to appear at the hearing date marked final, defense counsel occasioned additional delay, by subsequently failing to appear at several adjourned dates for the sanctions hearing, upon which the resolution of the motion to restore the matter to the traverse calendar depended.

Furthermore, as more than eight years had passed since the date of the contested service and award of judgment, the District Court could properly infer prejudice from the protracted delay (see generally McCarthy v Bagner, 271 AD2d 509 [2000]). As the court found, it is unlikely that the process server, if located and able to testify, would be able to recall the service of process with any clarity, and defendant's appearance may have changed significantly. Lastly, it is noted that restoring the matter for a traverse hearing would harm plaintiff by further prolonging the enforcement of the judgment, which was originally entered and served upon defendant in 2002 and not challenged until 2008.

Accordingly, the order, insofar as appealed from by defendant, is affirmed.

Defendant's attorney's failure to appear at the hearing scheduled on the court's motion to impose sanctions constituted a default. As no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511), defendant's attorney's appeal is dismissed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: August 07, 2012

20120807

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