Burro v. KangBurro v. Kang
WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ.
Jeanette Burro, etc., respondent, v Pritpal Kang, defendant, Dyker Emergency Physicians, P.C., et al., appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Elliott J. Zucker of counsel), for appellants.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice and wrongful death, etc., the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey appeal from an order of the Supreme Court, Kings County (Gloria M. Dabiri, J.), entered March 10, 2017. The order, insofar as appealed from, granted those branches of the plaintiff‘s motion which were for leave to renew her prior motion, inter alia, to restore the action to active status, which had been denied, without prejudice, in a prior order of the same court dated May 10, 2016, and for leave to renew her opposition to the separate cross motions of the defendant Pritpal Kang and the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against each of them, which had been granted in the order dated May 10, 2016, and upon renewal, in effect, vacated the order dated May 10, 2016, and thereupon granted that branch of the plaintiff‘s prior motion which was to restore the action to active status and, in effect, denied the separate cross motions of the defendant Pritpal Kang and the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against each of them.
ORDERED that the order entered March 10, 2017, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, upon renewal, in effect, denying the cross motion of the defendants Dyker Emergency Physicians, P.C., and Ajoy Kumar Pandey to dismiss the amended complaint insofar as asserted against them, and substituting therefor a provision, upon renewal, granting that cross motion only to the extent of imposing a monetary sanction in the sum of $2,500 payable to the defendant Dyker Emergency Physicians, P.C.,
In 2001, this action was commenced against, among others, the defendants Pritpal Kang, Dyker Emergency Physicians, P.C. (hereinafter Dyker), and Ajoy Kumar Pandey (hereinafter together with Dyker, the appellants) by Antonio P. Ferrante, the husband of Jean Ferrante (hereinafter the decedent), suing on behalf of the decedent‘s estate and on his own behalf, to recover damages, inter alia, for medical malpractice and wrongful death with respect to the decedent‘s death after she sought and received medical treatment from the defendants. After Antonio died in 2011, Jeannette Burro, as administrator of both the decedent‘s estate and Antonio‘s estate, was substituted as the plaintiff.
Following motion practice, the Supreme Court issued an order dated March 23, 2015 (hereinafter the conditional order of dismissal), in which the court directed that the amended complaint would be dismissed unless certain discovery deadlines were met and the plaintiff filed a note of issue, or moved to extend her time to do so, by September 11, 2015. The plaintiff failed to file a note of issue by September 11, 2015, as certain discovery remained outstanding, and she did not move to extend her time to file the note of issue. This matter was marked disposed by the court.
Subsequently, the plaintiff moved, inter alia, to restore the action to active status, and Kang and the appellants separately cross-moved to dismiss the amended complaint insofar as asserted against each of them. In an order dated May 10, 2016, the Supreme Court denied the plaintiff‘s motion “without prejudice” and granted the separate cross motions of Kang and the appellants.
Thereafter, the plaintiff moved, inter alia, for leave to renew her prior motion, among other things, to restore the action to active status, and for leave to renew her opposition to the separate cross motions of Kang and the appellants to dismiss the amended complaint insofar as asserted against each of them. In an order entered March 10, 2017, the Supreme Court, inter alia, granted those branches of the plaintiff‘s motion which were for leave to renew, and upon renewal, in effect, vacated the order dated May 10, 2016, and thereupon granted that branch of the plaintiff‘s prior motion which was to restore the action to active status and, in effect, denied the separate cross
As an initial matter, we observe that Kang has not appealed from the order entered March 10, 2017. “Relief on an appeal may not, as a general rule, be granted to a nonappealing party” (Stimmel v Stimmel, 163 AD2d 381, 383; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151 n 3; Hecht v City of New York, 60 NY2d 57, 61-62; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850). The corollary to this rule is that “an appellate court‘s scope of review with respect to an appellant, once an appeal has been timely taken, is generally limited to those parts of the judgment [or order] that have been appealed and that aggrieve the appealing party” (Hecht v City of New York, 60 NY2d at 61). As relevant here, “a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part” (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [emphasis omitted]). Accordingly, the appeal from so much of the order entered March 10, 2017, as granted the plaintiff relief against Kang must be dismissed, as the appellants are not aggrieved by those portions of that order (see
Turning to the merits, a motion for leave to renew must be based upon new facts, not offered on the original motion, “that would change the prior determination” (
Here, contrary to the appellants’ contention, the Supreme Court providently exercised its discretion in considering the new evidence submitted by the plaintiff in support of those
Contrary to the appellants’ further contention, the new evidence submitted by the plaintiff “change[d] the prior determination” (
Here, it is undisputed that the plaintiff adequately demonstrated the existence of a potentially meritorious cause of action. Accordingly, this Court need only consider whether the plaintiff adequately demonstrated a reasonable excuse for her failure to comply with the conditional order of dismissal.
“The determination of what constitutes a reasonable excuse lies within the Supreme Court‘s discretion” (Young Su Hwangbo v Nastro, 153 AD3d 963, 965). “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877; see Young Su Hwangbo v Nastro, 153 AD3d at 965; Fried v Jacob Holding, Inc., 110 AD3d 56, 60). “[T]he court has discretion to accept law office failure as a reasonable
Here, the new evidence submitted by the plaintiff, when considered in connection with the evidentiary materials submitted in connection with the original motion practice, set forth a detailed and credible explanation for the plaintiff‘s failure to fully comply with the conditional order of dismissal. Contrary to the appellants’ contention, the Supreme Court was entitled to re-evaluate the prior explanations of law office failure in light of the new evidence submitted by the plaintiff. Under the circumstances, and cognizant that public policy favors the resolution of cases on the merits, we conclude that the court providently exercised its discretion in accepting the plaintiff‘s explanation of law office failure as a reasonable excuse for the plaintiff‘s failure to fully comply with the conditional order of dismissal (see
Accordingly, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff‘s motion which were for leave to renew her prior motion and for leave to renew her opposition to the appellants’ cross motion to dismiss the amended complaint insofar as asserted against them. Furthermore, upon renewal, the court appropriately, in effect, vacated the determinations in the order dated May 10, 2016, and thereupon granted that branch of the plaintiff‘s prior motion which was to restore the action to active status.
Nonetheless, although the plaintiff set forth a reasonable explanation for her failure to fully comply with the conditional order of dismissal, the fact remains that she failed to fully comply with that order, and her conduct during discovery cannot be countenanced (see L & L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734, 736). Consequently, under all of the facts and circumstances of this case, a monetary sanction in the total sum of $5,000 is warranted to compensate the appellants for the time expended and costs incurred in connection with the plaintiff‘s failure to fully and timely comply with the conditional order of dismissal (see id. at 736; Friedman, Harfenist, Langer & Kraut v Richard Bruce Rosenthal, 79 AD3d 798, 801).
Accordingly, upon renewal, the Supreme Court improvidently exercised its discretion when it, in effect, denied the appellants’
MASTRO, J.P., AUSTIN, MILLER and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court