Black v. Taub

Summary

The Appellate Division, Second Department affirmed a judgment dismissing a medical malpractice complaint against emergency medicine physician Steven Piriano. The court held that although the plaintiff established a reasonable excuse for her default in opposing the physician's summary judgment motion, she failed to show a potentially meritorious opposition because she did not submit a medical expert affirmation. The court also dismissed the appeal from the intermediate order because the right to directly appeal that order terminated upon entry of judgment.

Holdings

1. The appeal from the order must be dismissed because the plaintiff's right to take a direct appeal from that order terminated upon entry of the judgment.
2. A party seeking to vacate an order or judgment entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion.

Questions Presented

1. Whether the appeal from the February 29, 2024 order had to be dismissed because entry of the April 23, 2024 judgment terminated the right to a direct appeal from the order.
2. Whether the plaintiff demonstrated both a reasonable excuse for her default in opposing the defendant's summary-judgment motion and a potentially meritorious opposition sufficient to vacate the default under CPLR 5015(a)(1).
3. Whether the plaintiff demonstrated a potentially meritorious medical-malpractice opposition by submitting evidence, including a medical-expert affirmation, rebutting the defendant's expert proof.

Disposition

affirmed