Kilty v. Brooks

In an action to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Ain, J.), entered February 9, 1993, which granted the motion by Michael Brooks individually and Michael Brooks, P. C., and the cross motion by Smithtown General Hospital, to dismiss the complaint pursuant to CPLR 3216, and (2) so much of an [807] order of the same court, entered July 6, 1993, as denied that branch of their motion which was to vacate the order dated February 9, 1993. Ordered that the appeal from the order entered February 9, 1993, is withdrawn; and it is further, Ordered that the order entered July 6, 1993, is reversed insofar as appealed from, on the law, the branch of the plaintiffs’ motion which was to vacate the order entered February 9, 1993, is granted, the order entered February 9, 1993, is vacated, and the motion and cross motion are denied; and it is further, Ordered that the appellant is awarded one bill of costs. The affidavits of a medical expert submitted in support of the plaintiffs’ motion to vacate the order dismissing their complaint for failure to prosecute, while inartfully drawn, were sufficient to support a claim that the treatment rendered to the plaintiffs’ decedent fell below acceptable standards and caused her injuries. Thus, the Supreme Court erred in denying the branch of the plaintiffs’ motion which was to vacate the order granting the motion and cross motion to dismiss on the ground that the plaintiffs failed to meet their burden of establishing the meritorious nature of their cause of action (see, Wulster v Rubinstein, 126 AD2d 545). Sullivan, J. P., Balletta, Lawrence and Florio, JJ., concur.