Dick v. Samaritan Hosp.
| Decision Date | 26 December 1985 |
| Citation | 115 A.D.2d 917,496 N.Y.S.2d 814 |
| Parties | Silvia DICK, Respondent, v. SAMARITAN HOSPITAL, Defendant, and Donald Paish et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Martin, Ganotis & Brown, P.C. (James Ganotis, of counsel), Syracuse, for appellants.
Reingold & Leff (Richard I. Leff, of counsel), Buffalo, for respondent.
Before MAIN, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.
Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered July 30, 1984 in Rensselaer County, which denied the motion of certain defendants to dismiss the complaint against them.
Plaintiff commenced the instant medical malpractice action against defendants Samaritan Hospital (Samaritan) and Donald Paish, Haque and Medical Emergency Room Associates (defendant physicians) in 1976. Issue was joined on August 24, 1976, bills of particulars were received in May of 1977 and examinations before trial were conducted in March of 1979. Thereafter, plaintiff sought additional discovery from Samaritan, which was not complied with. On March 2, 1982, defendant physicians served plaintiff with a CPLR 3216 demand to serve and file her note of issue within 90 days. In June of 1982, defendant physicians granted plaintiff a 60-day extension of the time to file the note of issue. Shortly thereafter, plaintiff brought on a motion to compel Samaritan to submit to the previously sought discovery and requested therein that defendant physicians be stayed from taking any action to require the filing of a note of issue. On July 27, 1982, defendant physicians agreed to extend the time period for filing until plaintiff's motion was determined. That motion was adjourned when Samaritan agreed to deliver the requested discovery items. However, Samaritan did not comply with that agreement and plaintiff continued to refrain from filing a note of issue.
On November 14, 1983, defendant physicians brought the instant motion to dismiss plaintiff's complaint due to plaintiff's failure to comply with the CPLR 3216 90-day demand served on them in March of 1982. In opposition to defendant physicians' motion, plaintiff's attorney submitted an affidavit explaining that a note of issue could not be filed until Samaritan delivered the requested discovery materials. Special Term denied defendant physicians' motion on the grounds that Samaritan's obstruction of discovery was the cause of the delay and that plaintiff had a meritorious cause of action. This appeal by defendant physicians ensued.
We affirm. In order to defeat the motion to dismiss the complaint for failure to comply with the CPLR 3216 demand to file the note of issue, plaintiff had to show a justifiable excuse for her delay and the existence of a good and meritorious cause of action (CPLR 3216[e] ). As found by Special Term, the reason for plaintiff's delay was Samaritan's failure to deliver agreed-upon discovery materials. Incompleted discove by one of the other parties to the action is a reasonable justification for plaintiff's delay (Peterwanda, Inc....
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...the worth of a malpractice claim may be proved (see, Creegan v. Mazella, 125 A.D.2d 358, 359, 509 N.Y.S.2d 82; Dick v. Samaritan Hosp., 115 A.D.2d 917, 919, 496 N.Y.S.2d 814). Here, plaintiffs have provided evidence of merit in the form of a physician's letter outlining several ways in whic......
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Slocum v. Board of Educ., Binghamton City School Dist.
...an instance where, as petitioner suggests, respondent's obstruction of discovery was the cause of the delay (cf. Dick v. Samaritan Hosp., 115 A.D.2d 917, 496 N.Y.S.2d 814; Schoenhals v. Kissing Bridge Corp., 96 A.D.2d 711, 465 N.Y.S.2d 375). In a proceeding of this nature, disclosure is ava......
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...several factors which, taken together, might warrant pardoning the plaintiff's procedural default (see, e.g., Dick v. Samaritan Hosp., 115 A.D.2d 917, 918-919, 496 N.Y.S.2d 814 [incompleted discovery may justify non-compliance with 90 day notice]; see also, Rumrill v. Epting, 88 A.D.2d 1047......
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