Cohen v. Silverman

• Decision Date: 12 March 2001
• Citation: 281 A.D.2d 445,722 N.Y.S.2d 48
• Parties: DEBBIE COHEN, Respondent,<BR>v.<BR>MATTHEW SILVERMAN et al., Defendants, and NORTH SHORE UNIVERSITY HOSPITAL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

281 A.D.2d 445

722 N.Y.S.2d 48

DEBBIE COHEN, Respondent,

v.MATTHEW SILVERMAN et al., Defendants, and NORTH SHORE UNIVERSITY HOSPITAL et al., Appellants.

Decided March 12, 2001.

Bracken, Acting P. J., O'Brien, Santucci and Florio, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provisions thereof denying the motions of the defendant North Shore University Hospital and the defendant Brookdale Hospital Medical Center and granting the plaintiff's cross motions, and substituting therefor provisions granting the motions of those defendants and denying the plaintiff's cross motions; as so modified, the order is affirmed, with one bill of costs payable by the plaintiff to the defendants North Shore University Hospital and Brookdale Hospital Medical Center.

The defendants North Shore University Hospital (hereinafter North Shore) and Brookdale Hospital Medical Center (hereinafter Brookdale) each served the plaintiff, pursuant to CPLR 3216, with 90-day notices, dated January 7, 1999, and January 25, 1999, respectively.After the 90-day periods expired, North Shore and Brookdale separately moved to dismiss the action insofar as asserted against them.The Supreme Court, inter alia, denied those motions and granted the plaintiff's cross motions to vacate the notices.This was error.

The plaintiff failed to move either to vacate the notices, or extend her time to comply with them within the proper time period.Thus, in order to avoid dismissal of her claim insofar as asserted against those defendants, the plaintiff was required to demonstrate the existence of a justifiable excuse for her default, as well as the existence of a meritorious cause of action (see, Allone v University Hosp.,249 AD2d 430).She failed to do so.

The plaintiff's contention that she demonstrated a justifiable excuse for her delay by showing that in 1997she served bills of particulars and authorizations for medical records, and sought a preliminary conference after service upon her of the two 90-day notices, is without merit.Furthermore, the plaintiff's contention that the delay was caused at least in part by the actions of the defendantDr. Matthew Silverman is unsupported by the record (cf., Matter of Simmons v McSimmons, Inc.,261 AD2d 547).

The plaintiff also failed to show the existence of a meritorious cause of action.We reject her contention that considering the nature of her injuries, the submission of her own affidavits was sufficient to show the...