Opinion
Index No. 805226/2023 Motion Seq. No. 001
02-08-2024
DANIEL HANOVER, Plaintiff, v. MARK SPEAKER, M.D., TLC THE LASER CENTER, INC., doing business as TLC THE LASIK CENTER-NYC, LASER AND CORNEA SURGERY ASSOCIATES, P.C., ALYSSA MANCUSO, O.D., STEVEN SIEGEL, O.D., and DOES 1 Through 10, Inclusive, Defendants.
Unpublished Opinion
MOTION DATE 11/08/2023
PRESENT: HON. JOHN J. KELLEY, Justice
DECISION + ORDER ON MOTION
JOHN J. KELLEY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, were read on this motion to/for DEFAULT JUDGMENT/INQUEST
In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant TLC The Laser Center, Inc., doing business as TLC The Lasik Center-NYC (TLC), and to proceed to inquest on the issue of damages against TLC. TLC did not timely oppose the motion. The motion nonetheless is denied.
Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof of service of the summons and complaint upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[fj; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; see also Manhattan Telecom. Corp, v H & A Locksmith, Inc., 21 N.Y.3d 200, 202 [2013]).
The relevant affidavit of service here established that, on June 14, 2023, the plaintiff served process upon TLC by delivering two copies of the summons and complaint, and paying the appropriate fee, to the New York Secretary of State (see CPLR 311 [a][1]; Business Corporation Law § 306). On June 15, 2023, he also caused a copy of the summons and complaint to be delivered at TLC's place of business to a man identified as Francisco S., who allegedly represented to the plaintiff's process server that he was a clerk who was authorized to accept service of process on behalf of TLC (see CPLR 311[a][1] [agent authorized by appointment to receive service]). If the service upon Francisco S. is deemed valid, TLC was required to answer, appear, or move with respect to the complaint no more than 20 days thereafter (see CPLR 3102[a]), that is, on or before July 5, 2023. If only the service upon the Secretary of State is deemed valid, TLC was required to answer, appear, or move with respect to the complaint no more than 30 days thereafter (see CPLR 3012[c]), that is, on or before July 14, 2023.
Inasmuch as a process server's affidavit of service is prima facie evidence of proper service (see Johnson v Deas, 32 A.D.3d 253, 254 [1st Dept 2006]), and TLC did not oppose this motion, the plaintiff made a prima facie showing that TLC was properly served with process pursuant to CPLR 308(3). The plaintiff's own affidavit established that TLC neither answered, moved, nor appeared in a timely manner on or before either July 5, 2023 or July 14, 2023, and that TLC thus was in default either as of July 6, 2023, or as of July 17, 2023, the first business day after July 14, 2023 (see General Construction Law § 25-a), depending on whether service upon Francisco S. was valied. The plaintiff made the instant motion on August 24, 2023 (see CPLR 2211) and, thus, within one year after TLC's default, no matter which date is considered to be the date of default. The plaintiff's motion is thus timely (see CPLR 3215[c]).
With respect to the proof of the facts constituting the claim,
"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the
uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id.; Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).
Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by a complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N Y2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]). For purposes of CPLR 3215, a complaint verified by a party may be employed as proof of the facts constituting the claim (see CPLR 105[u]), but only where it sets forth sufficient, detailed evidentiary facts, rather than mere conclusions (see Celnick v Freitag, 242 A.D.2d 436, 437 [1st Dept 1997]). A verified complaint that is conclusory in nature and devoid of factual allegations constituting the claim is insufficient to demonstrate the requisite proof (see Cohen v Schuplev, 51 A.D.3d 706, 707 [2d Dept 2008]; Luna v Luna, 263 A.D.2d 470 [2d Dept 1999]). In other words, the verified complaint must "set forth the facts constituting the alleged negligence" (Beaton v Transit Facility Corp., 14 A.D.3d 637, 637 [2d Dept 2005]).
With respect to the proof of the facts underlying his claims, the plaintiff relied only upon his own verified complaint and his own affidavit. Crucially, in the context of a medical malpractice action, an affidavit or affirmation of merit from an expert is required unless the matters alleged are within the ordinary experience and knowledge of a lay person (see Fiore v Galang, 64 N.Y.2d 999, 1000-1001 [1985]; Bollinger v Mark Mordechai Liechtung, DMD, P.C., 2023 NY Slip Op 31537[U], *5, 2023 NY Misc. LEXIS 2231, *6 [Sup Ct, N.Y. County, May 5, 2023] [Kelley, J.]; Checo v Mwando, 2022 NY Slip Op 31223[U], *4, 2022 NY Misc. LEXIS 1865, *5 [Sup Ct, N.Y. County, Apr. 7, 2022] [Kelley, J.]; Garcia v Solomon, 2020 NY Misc. LEXIS 17635, *2 [Sup Ct, Bronx County, Jun. 19, 2020]; Charles v Wolfson, 62 Misc.3d 1224[A], 2019 NY Slip Op 50251 [U], *1, 2019 NY Misc. LEXIS 866, *3 [Sup Ct, Bronx County, Mar 6, 2019]; see generally Burindaro v Grinberg, 57 A.D.3d 932, 933 [2d Dept 2008] ["plaintiff failed to demonstrate the existence of a meritorious cause of action" in medical malpractice case]). Although a motion for leave to enter a default judgment may be granted against a health-care provider in a malpractice action where the plaintiff submits an expert affirmation or affidavit, or even a peer-review document (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 A.D.3d 768, 769-770 [2d Dept 2016]; Diaz v Perez, 113 A.D.3d 421,421-422 [1st Dept 2014]), such a motion must be denied even where such an affidavit or affirmation is submitted, but is found to be insufficient (see Durr v New York Community Hosp., 43 A.D.3d 388, 389 [2d Dept 2007]; cf Willaims v D'Angelo, 24 A.D.3d 538, 539 [2d Dept 2005] [expert affirmation of merit is required to restore a medical malpractice action to the trial calendar pursuant to CPLR 3404 after it had been marked off the calendar for more than one year]; American Tr. Ins. Co. v Excell Clinical Lab, 2020 NY Slip Op 34123[U], *4, 2020 NY Misc. LEXIS 10480, *4 [Sup Ct, N.Y. County, Dec. 10, 2020] [expert affirmation of merit is required by no-fault automobile insurer to support its request to enter default judgment declaring that it was not obligated to pay benefits to non-appearing health-care provider, where the basis for its disclaimer was that the treatment rendered by provider was not medically necessary]).
The complaint here alleged malpractice in very general, conclusory, and boilerplate language. The plaintiff alleged that TLC was a corporation with which the defendant ophthalmologist Mark Speaker, M.D., was affiliated, that all of the defendants treated him between October 6, 2020 and October 22, 2020, and that Speaker performed bilateral LASIK surgery upon him on October 22, 2020. The plaintiff alleged that "[t]he ophthalmology care, treatment, advice, surgeries, and services rendered to the Plaintiff by defendants, their agents, servants and employees, were done in a negligent manner and not in accordance with good and accepted ophthalmology and eye surgery practice." More specifically, he asserted that the defendants, including TLC, were negligent in that,
"the ophthalmology treatment and advice, care, and services were rendered in an improper, negligent and careless manner; in that the defendants failed, neglected and omitted to use the skill, care, and diligence commonly and ordinarily possessed by and required of ophthalmologists and optometrists in the community; in that they failed, neglected and omitted to properly advise, treat, diagnose, care and operate regarding the Plaintiff's condition; in that they failed to maintain adequate and accurate medical records of the advice, diagnose, care and treatment rendered to Plaintiff; the departures from good and accepted ophthalmology practice in the community includes, without limitation, negligence in the diagnosis and treatment of Plaintiff; in that they failed to perform competent physical examinations of the Plaintiff; in ignoring and misinterpreting signs and
symptoms; in that they failed to advise the Plaintiff properly of the prognosis and of necessary medical treatment he should take; in that they failed to do a complete examination of both eyes; in that they failed to assess properly the Plaintiffs medical condition which, if no further treatment were given and neglected, would eventually lead to significant conditions; in that they failed to perform tests that are needed to determine underlying causes of the loss of visual acuity; they failed to perform test for diagnosis including various laboratory studies and appropriate referrals to other specialists; and in otherwise being negligent and in committing acts of malpractice."
The types of departures from good and accepted practice in the context of LASIK eye surgery and ophthalmological care that the plaintiff alleged here are perfect examples of the classes of departures that a non-expert, lay person would be completely unqualified to assess in the absence of an expert affirmation or expert testimony. Hence, even if properly verified by the plaintiff himself, the complaint and the plaintiffs affidavit were insufficient to support the entry of a default judgment against TLC (see LoGiudice v Zavarella, 2019 NY Misc. LEXIS 16235 [Sup Ct, Suffolk County, Nov. 27, 2019]; Charles v Wolfson, 2019 NY Slip Op 50251 [U], 62 Misc.3d 1224[A]).
Accordingly, it is
ORDERED that the plaintiff's motion for leave to enter a default judgment against the defendant TLC The Laser Center, Inc., doing business as TLC The Lasik Center-NYC, and to proceed to inquest on the issue of damages against that defendant, is denied, This constitutes the Decision and Order of the court.