Feinblum v. Dybner

• Decision Date: 12 October 1993
• Parties: Robert FEINBLUM, et al., Respondents, v. Rubin DYBNER, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 754

604 N.Y.S.2d 754

197 A.D.2d 560

Robert FEINBLUM, et al., Respondents, v. Rubin DYBNER, et al., Appellants, et al., Defendants.

Supreme Court of New York, Appellate Division,

Second Department.

Oct. 12, 1993.

Barry, McTiernan & Moore, New York City (William E. Fay III, of counsel), for appellants.

Beerman & Beerman, Elmhurst (Alen R. Beerman, of counsel), for respondents.

In an action to recover damages for medical malpractice, the defendants Rubin Dybner and Vasil Popa appeal from an order of the Supreme Court, Queens County (Lane, J.), dated June 24, 1991, which denied their motion pursuant to CPLR 3216 to dismiss the complaint insofar as it is asserted against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendants Dybner and Popa, and the action against the remaining defendants is severed.

We agree with the defendants' contention that the Supreme Court erred in denying their motion to dismiss the complaint due to the plaintiffs' failure to comply with their 90-day demand pursuant to CPLR 3216. Under the circumstances of this case, the plaintiffs' failure to submit an affidavit by a medical expert mandates dismissal of the complaint (see, Mosberg v. Elahi, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353; Perez v. Long Is. Jewish-Hillside Med. Ctr., 173 A.D.2d 530, 570 N.Y.S.2d 130).

MANGANO, P.J., and ROSENBLATT, LAWRENCE, COPERTINO and JOY, JJ., concur.