New York Supreme and/or Appellate Courts Appellate Division, First Department
April 18, 2013
PLUS ENDOPOTHETIK, ET AL.,
MICHAEL DUNCAN, ET AL.,
Navarro v Endopothetik
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 April 18, 2013
Andrias, J.P., Acosta, Freedman, Richter, Gische, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered November 2, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to vacate an order, same court and Justice, entered March 2, 2011, upon plaintiff's default, granting defendants Henry Insler, M.D. and Signature Health Center, LLC's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff failed to demonstrate a reasonable excuse for his failure to appear on the return date of the motion and a meritorious cause of action (see Goldman v Cotter, 10 AD3d 289 [1st Dept 2004]; CPLR 5015[a]). The record reflects that it was only after counsel for defendant Health and Hospitals Corporation (HHC) called plaintiff's counsel (from the courthouse) that plaintiff's counsel said he would not be appearing and requested an adjournment. There is no indication that he sought an adjournment from Dr. Insler and Signature Health Center with regard to their separately calendared motion. Moreover, plaintiff never opposed either of the motions returnable on that date, despite his counsel's having informed HHC's counsel on the telephone that he had submitted his opposition to HHC's motion (see e.g. Wilf v Halpern, 234 AD2d 154 [1st Dept 1996]).
Plaintiff failed to submit "expert medical opinion evidence" to demonstrate the merit of his action (see Mosberg v Elahi, 80 NY2d 941, 942 ).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 18, 2013
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