Opinion
Index No. 110727/07
05-05-2010
MARYANNE IMPERATO and CARLO IMPERATO Plaintiffs, v. MOUNT SINAI MEDICAL CENTER and MICHAEL A. PALESE, M.D. Defendants.
Decision and Order
JOAN B. LOBIS, J.S.C.:
Plaintiffs move, by order to show cause, for an order vacating this court's prior order, dated November 24, 2009, which precluded plaintiffs from offering expert testimony at trial. Defendants cross-move for an order dismissing the case against defendants with prejudice. For the reasons stated below, the motion is granted and the cross-motion is denied.
This action sounding in medical malpractice was commenced by the filing of a summons and complaint in August 2007. The parties appeared for a preliminary conference in October 2007 and several compliance and status conferences thereafter. The note of issue was filed on or about March 30,2009. Thereafter, defendants moved to vacate the note of issue. Defendants1 motion was granted on default by a decision and order signed on June 29,2009; a new note of issue was filed the next day. The parties appeared for a pre-trial conference on July 21,2009 and the trial was scheduled for November 9, 2009, to begin jury selection. Plaintiffs and defendants were directed to exchange their expert disclosures no later than forty-five (45) days before trial (September 25,2009) and thirty (30) days before trial (October 9,2009), respectively. The parties appeared for a subsequent pre-trial conference followed by a telephone conference, during which plaintiffs sought an adjournment because of the needs of their expert. To accommodate plaintiffs' request, the court adjourned the trial to December 7, 2009. The date by which plaintiffs and defendants needed to exchange their expert disclosure was extended to October 16, 2009 and November 6, 2009, respectively. After plaintiffs failed to exchange their expert disclosure by October 16, on or about October 23 defendants moved, by order to show cause, to compel plaintiffs to exchange their expert disclosures or preclude plaintiffs from using expert testimony at trial. On the return date of that application, the court permitted plaintiffs additional time to submit opposition papers and to serve their expert disclosure. After plaintiffs again defaulted, in a written decision signed on November 24, 2009, the court precluded plaintiffs from offering expert testimony at trial. Notwithstanding the preclusion order, defendants appeared before the court on the trial date; plaintiffs did not.
Plaintiffs' now ask the court to vacate the preclusion order. Their papers include a C.P.L.R. § 3101 (d) response, which gives reasonable detail as to the matters about which their expert will testify. Plaintiffs' counsel, Ira. C. Podlofsky, Esq., submits an affidavit in support of his clients' motion in which he maintains that personal problems and inadequate staffing led him to neglect this action. He asks that his personal illness and lack of oversight of this matter provide an excuse for his default. Plaintiffs argue that the information in their 3101 (d) notice establishes that their claims are meritorious. Defendants argue that plaintiffs' repeated failure to comply with court orders should not be overlooked; that plaintiffs have presented neither a reasonable excuse for the delay nor a meritorious cause of action; and that defendants' motion to dismiss must be granted if plaintiffs' preclusion order stands.
"New York's public policy strongly favors litigating matters on the merits." Lamar v. City of New York, 68 A.D.3d 449, 449 (1st Dcp't 2009) (citation omitted). As long as the previously defaulting movant has made a showing of reasonable excuse and meritorious claims, the case will continue. Rugieri v. Bannister, 7 N.Y.3d 742, 744 (2006). Mere, the law office failure caused by plaintiffs' counsel's illness and the resulting lack of attention to the litigation shall—in an exercise of discretion—be considered a reasonable excuse for the failure to timely serve the 3101 (d) notice. See Chelli v. Kelly Group, P.C.. 63 A.D.3d 632, 633 (1st Dep't 2009). The notice attached—although not signed by the expert—is sufficient to establish that the case has merit. There has been no sustained period of blatant disregard of court orders and defendants have not demonstrated prejudice. See Barbour v. Hospital for Special Surgery. 169 A.D.2d 385, 386 (1st Dep't 1991). Upon the condition below being satisfied, the order of preclusion is vacated and the annexed C.P.L.R. § 3101(d) notice is deemed served. The cross-motion to dismiss is denied.
Finally, the vacatcur of the preclusion order is conditioned upon plaintiff's payment of $100 in costs to defendants, within thirty (30) days of the dale of this decision and order, in lieu of a sanction finding and payment to the Lawyers' Fund for Client Protection.
The parties shall appear for a pre-trial conference on June 1, 2010 at 9:30 a.m.
This constitutes the decision and order of the court.
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JOAN B. L0BIS, J.S.C.