Opinion
201 CA 18–00213
03-13-2020
IBUKUN OGUNBEKUN, Plaintiff–Appellant, v. STRONG MEMORIAL HOSPITAL, Dr. Sam Huber, Dr. Telva Olivares and Dr. Eric Caine, Defendants–Respondents.
HOGANWILLIG, PLLC, AMHERST (SCOTT MICHAEL DUQUIN OF COUNSEL), FOR PLAINTIFF–APPELLANT. OSBORN, REED & BURKE, LLP, ROCHESTER (RICHARD BRISTER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
HOGANWILLIG, PLLC, AMHERST (SCOTT MICHAEL DUQUIN OF COUNSEL), FOR PLAINTIFF–APPELLANT.
OSBORN, REED & BURKE, LLP, ROCHESTER (RICHARD BRISTER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order that denied his motion to vacate an order dismissing the complaint pursuant to 22 NYCRR 202.27(b) upon his default. Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in denying the motion. The motion was untimely inasmuch as it was not made within one year after service of a copy of the default order of dismissal with notice of entry (see CPLR 5015[a][1] ; Chase Home Fin., LLC v. Desormeau, 152 A.D.3d 1033, 1035, 59 N.Y.S.3d 812 (3d Dept. 2017) ; Hayes v. Village of Middleburgh, 140 A.D.3d 1359, 1362, 34 N.Y.S.3d 659 (3d Dept. 2016) ) and, although the court "retains inherent authority to vacate its own order ‘in the interest of justice, even where the statutory one-year period ... has expired’ " ( Hayes, 140 A.D.3d at 1362 ), plaintiff failed to "demonstrate a reasonable excuse for his lengthy delay in moving" to vacate the order of dismissal ( Feldman v. Delaney, 94 A.D.3d 1043, 1043, 943 N.Y.S.2d 555 (2d Dept. 2012) ; see Malik v. Noe, 54 A.D.3d 733, 734, 864 N.Y.S.2d 82 (2d Dept. 2008) ; cf. Bodden v. Penn–Attransco Corp., 20 A.D.3d 334, 334–335, 800 N.Y.S.2d 129 (1st Dept. 2005) ; see also Pawarski v. Southeast Community Work Ctr., 143 A.D.2d 511, 511, 533 N.Y.S.2d 161 (4th Dept. 1988) ). Moreover, even if plaintiff had timely moved to vacate or presented a reasonable excuse for his delay in moving, "[a] plaintiff seeking relief from a default [order] must establish a reasonable excuse for the default and a meritorious cause of action" ( Butchello v. Terhaar, 176 A.D.3d 1579, 1580, 110 N.Y.S.3d 471 (4th Dept. 2019) [internal quotation marks omitted] ), and plaintiff made neither showing in this case.