Wynter v. Our Lady of Mercy Medical Center

Wynter v Our Lady of Mercy Med. Ctr. (2017 NY Slip Op 04362)

Wynter v Our Lady of Mercy Med. Ctr.

2017 NY Slip Op 04362

Decided on June 1, 2017

Appellate Division, First Department

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 June 1, 2017
Richter, J.P., Andrias, Moskowitz, Feinman, Kapnick, JJ.

23492/91 3923A 3923

[*1] Othilda Wynter, etc., et al., Plaintiffs-Appellants,

v

Our Lady of Mercy Medical Center, et al., Defendants-Respondents, Evelyn Campbell, R.N., et al., Defendants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellants.

Turken & Heath, LLP, Armonk (Jason D. Turken of counsel), for Our Lady of Mercy Medical Center, Patricia Scanlon, M.D. and Jerry Balentine, M.D., respondents.

Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for New York City Health and Hospitals Corporation, respondent.

Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Christopher Simone of counsel), for Stephen Weitz, M.D., respondent.

Judgments, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered September 15, 2015 and September 24, 2015, dismissing the complaint as against defendants New York City Health and Hospitals Corporation, Stephen Weitz, M.D., Our Lady of Mercy Medical Center, Patricia Scanlon, M.D., and Jerry Balentine, M.D., unanimously affirmed, without costs.

Notwithstanding the strong public policy of this State to decide cases on the merits and our previous recognition of the potential merit of plaintiffs's claims (see Wynter v Our Lady of Mercy Med. Ctr., 3 AD3d 376 [1st Dept 2004]), the motion court providently exercised its discretion in denying vacatur of plaintiffs' default at the May 20, 2013 and July 24, 2013 court conferences. Bearing in mind the principle that "ultimately it was plaintiff's duty to prosecute its case" (Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 481 [1st Dept 2011], lv dismissed 17 NY3d 922 [2011]], lv dismissed 19 NY3d 898 [2012]), we find plaintiffs failed to provide a reasonable excuse for their various failures to prosecute their claims after this case was restored by this Court in 2004, including the failure to appear at the 2013 conferences at issue on this appeal that resulted in the dismissal of this action pursuant to the Uniform Rules for Trial Courts (22 NYCRR) § 202.27(b).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 1, 2017

CLERK