Sheryl R. Menkes v. Mount Sinai Health System, Inc., et al.
Categories
Attorneys and Parties
Brief Summary
Medical malpractice; whether a plaintiff may vacate a dismissal entered after failing to appear at a scheduled conference and restore the action.
The trial court granted plaintiff's motion under CPLR 5015(a)(1) [authorizes vacatur of an order or judgment based on excusable default], vacated its prior dismissal under 22 NYCRR 202.27 [permits dismissal when a party fails to appear for a scheduled court conference], and reinstated the complaint.
The Appellate Division reversed the order reinstating the case, denied the motion to vacate the dismissal, and dismissed the complaint.
Plaintiff failed to satisfy the two required showings for restoring a case dismissed for nonappearance: a meritorious cause of action and a reasonable excuse for missing the conference. Her expert affirmation was conclusory and did not explain the applicable standard of care, the alleged departures, or causation, and the record did not support her claimed excuse for failing to join the virtual conference.
Background
Plaintiff brought a medical malpractice action arising from hip replacement surgery, claiming injury including loss of femoral nerve function. The complaint was dismissed without prejudice on July 29, 2024 after plaintiff failed to attend a scheduled virtual status conference. Plaintiff then moved to vacate that dismissal and restore the action.
Lower Court Decision
Supreme Court, New York County, granted plaintiff's motion under CPLR 5015(a)(1), vacated the July 29, 2024 dismissal entered under 22 NYCRR 202.27, and reinstated the complaint.
Appellate Division Reversal
The Appellate Division held that restoration of a case dismissed for failure to appear requires both a reasonable excuse and a showing of merit. In this medical malpractice case, plaintiff was required to submit competent expert medical opinion evidence establishing merit. The court found plaintiff's expert submission inadequate because it merely asserted that plaintiff suffered femoral nerve loss from the surgery, without identifying the standard of care, how defendants departed from it, or how any departure caused the injury. The court also found no reasonable excuse for plaintiff's failure to join the virtual conference, especially because the court had called her office and directed her to join, and the record did not show that she was unavailable or in transit. Accordingly, the appellate court reversed, denied the motion, and left the complaint dismissed.
Legal Significance
The decision reinforces that a party seeking to vacate a dismissal for nonappearance under 22 NYCRR 202.27 must satisfy both prongs of the restoration standard. In medical malpractice actions, merit cannot be shown through conclusory expert assertions; the expert must address the standard of care, the specific departures, and causation in nonconclusory terms. It also underscores that unsupported appellate claims about why counsel missed a conference will not substitute for record-based proof of a reasonable excuse.
A medical malpractice plaintiff seeking to reopen a case dismissed for missing a conference must provide a documented excuse and a detailed expert affirmation showing malpractice and causation; conclusory expert statements and unsupported explanations for nonappearance are insufficient.