On April 19, 2000, the following papers were read on Claimants' motion to
vacate my previous decision and order conditionally dismissing claim:
Notice of Motion; Affidavit and Annexed Exhibits
Affirmation in Opposition
Expert Disclosure Demand
Collateral Source Demand
Demand for Discovery and Inspection
Demand for Verified Bill of Particulars
Notice of Examination Before Trial
Claim and Answer
Claimants filed this medical malpractice action on April 17, 1997. After
Claimants failed to meet certain Court ordered discovery deadlines, Defendant
moved to dismiss the claim pursuant to CPLR 3126(3) and 3042(e). Claimants did
not respond to the motion. A conditional order was filed on April 27, 1999,
which provided that the claim would be dismissed unless Claimants served and
filed complete responses to Defendant's Article 31 discovery demands and demand
for bill of particulars and appeared for certain depositions and for an
independent medical examination. The order was served on May 6, 1999 by
Defendant with notice of entry. Claimants did not meet the deadlines
established by the conditional order and never contacted my chambers to request
an enlargement of the period for compliance.
Claimants now move to vacate my conditional order of dismissal. In order to be
relieved of their default, Claimants needed to demonstrate both a reasonable
excuse for their failure to respond to the order as well as a meritorious cause
of action (Alphonse v UBJ, Inc., 266 AD2d 171; Barriga v Sapo, 250
AD2d 795; see also, Thompson v County of Erie, 91 AD2d 850,
affd 61 NY2d 648).
Claimants offer four excuses for their non-compliance: (1) the inattention of
their former attorney; (2) the loss of certain medical records by their cousin,
an attorney who was assisting but not representing them; (3) their inability to
retain a new attorney and their pro se status at the time the conditional order
was entered; and, (4) Claimant Peter Rinaldi's poor health. I conclude that
none of these excuses justifies setting aside the order.
Claimants' former attorney stopped representing them by early November 1996 --
more than two and one-half years before the April 27, 1999 conditional order,
and nearly two years before the disclosure deadlines were initially set.
Claimants have not explained how his efforts prior to 1996 affected their
ability to proceed in 1998-1999.
The missing medical records do not excuse Claimants' non-compliance either.
Generally speaking, excuses such as misplacement of a file or document are
insufficient, as a matter of law, to permit a court to vacate a default
(Migliaccio v Phoenix Insurance Co., 91 AD2d 821, 821-822). Moreover, a
perusal of Defendant's Discovery Demands and Demand for Bill of Particulars
reveals that Claimants could have responded to many of the demands without
referring to any medical records. Certainly the missing medical records did not
prevent Claimants from appearing for their depositions. Claimants' submissions
also reveal that the medical records were known to be lost in December 1998, yet
Claimants have not submitted proof that they tried to procure duplicate copies
of the records either before or after the entry of the conditional dismissal
Claimants' pro se status and their inability to retain an attorney does not
constitute an excuse for their default either. Both the scheduling order and
the conditional dismissal order indicated in plain language what Claimants had
to do and when they had to do it. Claimants did not indicate in their moving
papers that they were confused by the orders. Nor did they show how their pro
se status prevented them from complying with the orders. Hence, their reliance
upon their pro se status at the time in question is unavailing (Stow
Manufacturing Co. v F & K Supply, 232 AD2d 958 [refusing to excuse
failure to follow straightforward letter directing appearance and warning of
consequences of default]; John Malasky, Inc. v Mayone, 54 AD2d 1059, 1060
[complexity of law and the unfamiliarity with the facts are "woefully
inadequate" reasons for a default]; see also, Moore v
Claudio, 224 AD2d 502, 503 [inability to retain counsel is not a reasonable
excuse for a default]).
Though I am sympathetic to claims that Mr. Rinaldi's health prevented him from
pursuing his claim, I find this argument to be insufficient for two reasons.
First, the record does not specifically establish the extent to which he was
actually impaired during the time period that he was supposed to be responding
to Defendant's discovery. He was healthy enough to appear before me on August
10, 1998 at the preliminary conference where the disclosure deadlines were set.
Second, there is no suggestion in the record that Mrs. Rinaldi was unable to
carry out Claimants' disclosure responsibilities.
Finally, even if I were to conclude that Claimants had shown a reasonable
excuse for their default, I conclude that they have not shown that their claim
is meritorious (Lugardo v Folkes, 110 AD2d 756; Stow Manufacturing
Co. v F & K Supply, 232 AD2d 958, supra; Migliaccio v
Phoenix Insurance Co., 91 AD2d 821, supra).
The motion is denied.