Jenkins v. Brookdale Hospital Medical Center — 200 A.D.2d 611

Majority

p. 611

Pearl Jenkins et al., Respondents, v Brookdale Hospital Medical Center et al., Appellants, et al., Defendants.

[608 NYS2d 849]

—In an action, inter alia, to recover damages for medical malpractice, the defendants Brookdale Hospital Medical Center and Dr. Joel Benowitz appeal from an order of the Supreme Court, Kings County (Bellard, J.), dated March 21, 1991, which granted the plaintiffs’ motion to vacate their default in responding to a motion to preclude the introduction

p. 612

of certain evidence at trial, and denied their cross-motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

The court did not improvidently exercise its discretion in vacating the plaintiffs’ default which was caused by law office failure (see, CPLR 2005, 5015 [a] [1]; Giordano v Patel, 177 AD2d 468 ; Brown v Ryder Truck Rental, 172 AD2d 477 ). In addition, material issues of fact remain which require a trial. Bracken, J. P., Balletta, O’Brien and Pizzuto, JJ., concur.

Cases cited

Giordano v. Patel 177 AD2d 468 N.Y. App. Div. 1991-11-04 p. 612