Ward v New York City Health & Hosps. Corp.

Mar 8, 2011
4443 15810/05
Versions:82 AD3d 471
2011 NY Slip Op 01695

Trayvon Ward et al., Appellants,
v
New York City Health & Hospitals Corporation, Respondent.

—[*1] Regina L. Darby, New York, for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondent.

Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered October 8, 2008, which denied plaintiffs’ motion to vacate an order granting, on default, defendant‘s motion to dismiss the complaint, unanimously affirmed, without costs.

Defendant obtained a default judgment dismissing the action after plaintiffs failed to comply with a precondition to commencing action by failing to appear at a General Municipal Law § 50-h hearing, after adjourning the hearing nine times. In seeking to vacate the dismissal, plaintiffs failed to demonstrate a meritorious defense (see Best v City of New York, 97 AD2d 389 [1983], affd 61 NY2d 847 [1984]; Wells v City of New York, 254 AD2d 121 [1998], lv dismissed 92 NY2d 1046 [1999], cert denied 527 US 1012 [1999]). They also failed to demonstrate the merits of their cause of action by not submitting an affidavit of merit by a medical professional (see Walker v City of New York, 46 AD3d 278, 281-282 [2007]; Di Simone v Good Samaritan Hosp., 100 NY2d 632, 634 [2003]).

Nor was plaintiffs’ “conclusory and perfunctory” claim of law office failure a reasonable excuse for the default in view of the pattern of dilatory behavior they engaged in in prosecuting this matter (see Perez v New York City Hous. Auth., 47 AD3d 505, 505-506 [2008]; Metral v Bonifacio, 309 AD2d 724 [2003]). There were, in addition to the 10 missed appointments for a General Municipal Law § 50-h hearing, and other things, three motions to file a late notice of claim. In the nearly 10 years since plaintiffs filed their late notice of claim, discovery has not even been commenced (see Metral, 309 AD2d at 724). Moreover, their proffered excuse is based not on the affirmant‘s personal knowledge but on the hearsay of a per diem attorney who claimed that a motion clerk advised him that no motion was pending in the case (see AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904, 906 [2009]). Concur—Tom, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.