Bregman v. Finn

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 16, 2004, as denied that branch of his motion which was to vacate so much of a judgment of the same court dated January 27, 2003, as, upon a prior order of the same court dated December 16, 2002, inter alia, granting the motion of the defendant Douglas Finn pursuant to CPLR 3126 to dismiss the complaint upon his failure to oppose the motion, dismissed the complaint insofar as asserted against the defendant Douglas Finn. Ordered that the order is affirmed insofar as appealed from, with costs to the respondent. We agree with the Supreme Court that the plaintiff failed to show the existence of a meritorious claim with respect to the defendant Douglas Finn (see Yushavayev v Kopelman, 307 AD2d 996 [2003]; McKay v H.I.P. of Greater N.Y., 163 AD2d 280 [1990]; Canter v Mulnick, 93 AD2d 751 [1983], affd 60 NY2d 689 [1983]). Accordingly, the Supreme Court properly denied that branch of the plaintiffs motion which was to vacate so much of the judgment as, upon an order granting Finn’s motion pursuant to CPLR 3126 to dismiss the complaint upon the plaintiffs failure to oppose the motion, dismissed the complaint insofar as asserted against Finn. [745] In light of this determination, we need not reach the parties’ remaining contentions. Florio, J.P., Schmidt, Fisher and Dillon, JJ., concur.