Ellis v. Urs

Citation503 N.Y.S.2d 79,121 A.D.2d 361
PartiesKenneth ELLIS, Respondent, v. Krishne URS, et al., Appellants.
Decision Date02 June 1986
CourtNew York Supreme Court — Appellate Division

Amabile & Erman, Brooklyn (Edward F. Humphries and Paul M. DeCarlo, of counsel), for appellant Urs.

Morris & Duffy, New York City (Patricia D'Alvia, of counsel), for appellant Doctors Hosp. of Staten Island.

Richard Kranis, P.C., New York City, for respondent.

Before MOLLEN, P.J., and LAWRENCE, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the defendants Krishne Urs and Doctors Hospital of Staten Island appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated November 9, 1984, which denied their separate motions to dismiss the plaintiff's complaint for want of prosecution.

Order modified, on the law and facts, by deleting the provision thereof denying the motion of Doctors Hospital of Staten Island to dismiss the action as against it, and substituting therefor a provision granting its motion. As so modified, order affirmed, with one bill of costs payable by the plaintiff to the defendant Doctors Hospital of Staten Island.

On May 9, 1979, the plaintiff commenced this medical malpractice action against the Doctors Hospital of Staten Island (hereinafter the hospital) and Dr. Urs to recover damages for injuries resulting from an operation performed on May 14, 1977, for the purpose of treating the plaintiff's lacerated right hand. Issue was joined in 1979 and depositions were conducted in 1981. On January 16, 1984, after approximately two years of inactivity, the hospital served notice, pursuant to CPLR 3216(b)(3), requiring the plaintiff to serve and file a note of issue within 90 days of receipt thereof. On February 29, 1984, the defendant Urs also served a 90-day notice. Both the defendants served the notice by certified mail upon the plaintiff's attorney of record at his designated or last known address. Due to the relocation of his office, the plaintiff's attorney did not receive the hospital's 90-day notice until April 3, 1984. Moreover, Dr. Urs' notice was not received by the plaintiff's attorney until on or about May 29, 1984. It is undisputed that the plaintiff never notified the defendants of a change in the name of the law firm representing him or a change in its address. Consequently, service of both 90-day notices was in accordance with CPLR 2103(b)(2) (see, Chyrywa v. Chyrywaty, 102 A.D.2d 1009, 477 N.Y.S.2d 884; Anthony v. Schofield, 265 App.Div. 423, 39 N.Y.S.2d 225; Quinn v. City of New York, 25 Misc.2d 116, 206 N.Y.S.2d 145).

In response to the defendant hospital's motion to dismiss the action for want of prosecution, the plaintiff served a note of issue on August 22, 1984, over four months after receipt of the hospital's demand and 85 days after receipt of the doctor's demand. By notice of motion, also dated August 22, 1984, the defendant Dr. Urs moved to dismiss the action for want of prosecution.

At the plaintiff's request, the return date of the defendant's respective motions to dismiss the action was adjourned from August 30, 1984, until October 18, 1984. On the morning of the adjourned return date, the plaintiff served his adversaries with opposition papers that did not include an affidavit of merit by a medical expert. Both the defendants contended that the absence of such an affidavit mandated dismissal of the motion. After oral argument on October 18, 1984, the plaintiff served, without permission, an affidavit of merit dated October 22, 1984 by a physician, Dr. Paukman. In the order appealed from, dated November 9, 1984, Special Term denied the defendants' respective motions to dismiss, concluding that an affidavit from the plaintiff sufficed to demonstrate the merit of his claim.

It is clear from Special Term's memorandum decision that it refused to consider the affidavit of Dr. Paukman, which was submitted without permission by the plaintiff after the adjourned return date. No excuse was proffered by the plaintiff for the tardily served affidavit. Under the circumstances of this case, Special Term's refusal to consider the affidavit in opposition to the defendants' motions to dismiss was not an abuse of discretion (see, CPLR 2214[c]; Foitl v. G.A.F. Corp., 64 N.Y.2d 911, 488 N.Y.S.2d 377, 477 N.E.2d 618; Wallin v. Wallin, 34 A.D.2d 870, 310 N.Y.S.2d 788). However, contrary to Special Term's construction of case law, expert medical opinion evidence was required to demonstrate merit because the plaintiff's medical malpractice claim is predicated upon matters not within the ordinary experience of laymen (see, Fiore v. Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188; Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379). In this case, neither the affidavit of the plaintiff, who does not allege to be a medical expert (see, Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 468 N.Y.S.2d 460, 455 N.E.2d 1255; Canter v. Mulnick, 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257), nor the verified complaint sufficed to establish the merit of his claim (see, Fiore v. Galang, supra; Courell v. Kurzner, App.Div., 500 N.Y.S.2d 29).

...

To continue reading

Request your trial
4 cases
  • Indemnity Ins. Co. v. Lamendola
    • United States
    • New York Supreme Court — Appellate Division
    • 24 May 1999
    ...Serv. Mut. Ins. Co. v. Zucker, 225 A.D.2d 308, 639 N.Y.S.2d 5; Juracka v. Ferrara, 137 A.D.2d 921, 524 N.Y.S.2d 885; Ellis v. Urs, 121 A.D.2d 361, 503 N.Y.S.2d 79). Since the 90-day period runs from the date of actual receipt (see, 7 Weinstein-Korn-Miller, N.Y. Civ. Prac. p 3216.07), the ap......
  • Safina v. Queens-Long Island Medical Group, P.C.
    • United States
    • New York Supreme Court — Appellate Division
    • 14 April 1997
    ...v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Kwiatkowska v. Aramburu, 133 A.D.2d 810, 520 N.Y.S.2d 352; Ellis v. Urs, 121 A.D.2d 361, 503 N.Y.S.2d 79). The plaintiff's additional contentions are without SULLIVAN, J.P., and JOY, FRIEDMANN and FLORIO, JJ., concur. ...
  • Trinchera v. Yonkers General Hosp.
    • United States
    • New York Supreme Court — Appellate Division
    • 29 June 1987
    ...expert medical opinion is required to establish merit (Fiore v. Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188; Ellis v. Urs, 121 A.D.2d 361, 503 N.Y.S.2d 79) and the verified complaint of the plaintiff, who did not claim any medical expertise did not satisfy this obligation (Ellis ......
  • Dunetz v. Melamed
    • United States
    • New York Supreme Court
    • 21 September 2010
    ...in order to vacate the dismissal. In that regard, the Defendants rely on Amodeo v. Radler, 59 N.Y.2d 1001 (1983) and Ellis v. Urs, 121 A.D.2d 361 (2nd Dept. 1986). In Amodeo, a case involving the issue of whether the Plaintiff established an excusable default and a meritorious cause of acti......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT