Feinstein & Naishtut, LLP, Rye Brook, N.Y. (Steven D. Feinstein of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel Ratner of counsel), for respondents.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER E. LOTT, JJ.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered April 27, 2012, which denied her motion to vacate an order of the same court dated October 21, 2011, dismissing the action pursuant to 22 NYCRR 202.27, upon her default in appearing for a pretrial conference, and to restore the action to the court's calendar.
ORDERED that the order entered April 27, 2012, is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court clearly stated in its order dated October 21, 2011, that the action was dismissed pursuant to 22 NYCRR 202.27(b) for counsel's failure to appear at a scheduled pretrial conference. The plaintiff's contention that the action was simply marked off the trial calendar pursuant to CPLR 3404, rather than dismissed pursuant to 22 NYCRR 202.27(b) for nonappearance of counsel, is improperly raised for the first time on appeal (see DeRosario v New York City Health & Hosps. Corp., 22 A.D.3d 270, 270-271). Consequently, to vacate the order dated October 21, 2011, dismissing the action, and to restore the action to the court's calendar, the plaintiff was required to demonstrate a reasonable excuse for her failure to appear and a potentially meritorious cause of action (see Siculan v Koukos, 74 A.D.3d 946, 947; Grippi v Balkan Sewer & Water Main Serv., 66 A.D.3d 837, 838; Psomatithis v Transoceanic Cable Ship Co., Inc., 39 A.D.3d 837, 838). The excuse proffered by the plaintiff's attorney that he "did not see" the pretrial conference date noted on the compliance conference order, even though he admitted that he read the order, did not constitute a reasonable excuse (see 47 Thames Realty, LLC v Robinson, 61 A.D.3d 923, 924).
Contrary to the defendants' contention, under the circumstances of this case, the affidavit of the plaintiff's medical expert, which was submitted for the first time in reply, may be considered, since the defendants had an opportunity to respond thereto and submitted papers in surreply (see Zernitsky v Shurka, 94 A.D.3d 875, 876; Turturro v City of New York, 77 A.D.3d 732, 734; Valure v Century 21 Grand, 35 A.D.3d 591, 592). However, even upon considering the aforementioned affidavit, the affidavit was conclusory and, thus, was insufficient to demonstrate that this medical malpractice action was potentially meritorious (see Rappaport v North Shore Univ. Hosp., 60 A.D.3d 1029, 1029; Nowell v NYU Med. Ctr., 55 A.D.3d 573, 574; Bollino v Hitzig, 34 A.D.3d 711, 711).
Accordingly, the plaintiff's motion was properly denied.
ANGIOLILLO, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., ...