Donegan v. St. Joseph's Medical Ctr.

• Decision Date: 01 May 2001
• Citation: 724 N.Y.S.2d 582,283 A.D.2d 152
• Parties: (A.D. 1 Dept. 2001) Nora T. Donegan, etc., Plaintiff Respondent, v. St. Joseph's Medical Center, et al., Defendants-Appellants, and Abdul Azeez, Defendant. 4034 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 582

724 N.Y.S.2d 582 (A.D. 1 Dept. 2001)

Nora T. Donegan, etc., Plaintiff Respondent, v. St. Joseph's Medical Center, et al., Defendants-Appellants, and Abdul Azeez, Defendant.

4034

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

May 1, 2001

John E. Lawler - for plaintiff-respondent, Mark Korn & Suzanne Rapisarda - for defendants-appellants.

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered November 17, 2000, which, man action for medical malpractice, denied defendants' motions to dismiss the complaint for failure to prosecute, unanimously affirmed, without costs.

We are satisfied that plaintiff's failure to file a note of issue within 90 days of defendants' CPLR 3216 demand was largely attributable to defendants' refusal to comply with the notices to take their depositions and for production of documents that plaintiff served in response to the demand. Accordingly, the motion to dismiss was properly denied, even without a medical affidavit demonstrating the merits of the action (see, Matter of Simmons v McSimmons, Inc., 261 A.D.2d 547).

Sullivan, P.J., Mazzarelli, Ellerin, Buckley, JJ., concur.