Odess v. Medical Center
| Decision Date | 13 February 1979 |
| Citation | 67 A.D.2d 941,413 N.Y.S.2d 205 |
| Parties | Sheldon ODESS, Respondent, v. MEDICAL CENTER, TEAMSTER LOCAL 1034, Defendant, and Steven Eleew et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Gantman, Cyperstein & Peckman, New York City (Sabina Annunziata, Brooklyn, of counsel), for appellants.
Before DAMIANI, J. P., and TITONE, SUOZZI and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the individual defendants appeal from an order of the Supreme Court, Kings County, dated March 10, 1978, which (1) denied their motion to dismiss the action for failure to serve a complaint (see CPLR 3012, subd. (b)), and (2) granted plaintiff's cross motion for leave to serve a complaint.
Order reversed, on the law, without costs or disbursements, motion granted, and cross motion denied.
In our opinion, the extended illness and depression of plaintiff's attorney caused by the death of his wife some years before, was insufficient reason to justify the more than 30-month delay in complying with appellants' demand for service of a complaint. Accordingly, the denial of appellants' motion to dismiss the action pursuant to CPLR 3012 (subd. (b)), constituted an abuse of discretion (see Berland v. Fine, 63 A.D.2d 642, 404 N.Y.S.2d 640 in which the plaintiff was represented by the same attorney as represents the plaintiff herein).
DAMIANI, J. P., and TITONE and SHAPIRO, JJ., concur.
SUOZZI, J., dissents and votes to modify the order appealed from by adding thereto a provision imposing a penalty of $250 on plaintiff's attorney, personally payable to appellants, and as so modified, to affirm the order, with the following memorandum:
The majority is of the view that Special Term erred in permitting plaintiff leave to serve his complaint upon appellants in view of the fact that prior service of the complaint was made by plaintiff's counsel upon defense counsel and rejected more than 30 months after the latter had made a demand for the complaint. Specifically, the majority rejects the reason offered for the delay in serving the complaint, i. e., the extended illness and depression of plaintiff's attorney caused by the death of his wife some years before.
Special Term was of the view that plaintiff had demonstrated a meritorious cause of action and that his attorney's illness was a valid excuse for the delay. In granting the plaintiff's motion it stated:
"The general policy of the courts is to permit actions to be tried on the merits...
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Barasch v. Micucci
...timely to serve a complaint, the plaintiff must demonstrate a reasonable excuse for the delay (e. g., Odess v. Medical Center, Teamster Local 1034, 67 A.D.2d 941, 413 N.Y.S.2d 205; Hellner v. Mannow, 41 A.D.2d 525, 340 N.Y.S.2d 15 app. dsmd. 32 N.Y.2d 897, 346 N.Y.S.2d 815, 300 N.E.2d 155; ......
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LaBuda v. Brookhaven Memorial Hosp. Medical Center
...individual with personal knowledge of those facts, the length of the delay and seriousness of the injury (Odess v. Medical Center, Teamster Local 1034, 67 A.D.2d 941, 413 N.Y.S.2d 205; Batista v. St. Luke's Hosp., 46 A.D.2d 806, 361 N.Y.S.2d 190; Moran v. Ryner, 39 A.D.2d 718, 332 N.Y.S.2d ......
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Bouvia v. Community General Hospital of Greater Syracuse
...is the delay attributable to "law office failure" (cf. Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745; Odess v. Medical Center, Teamster Local 1034, 67 A.D.2d 941, 413 N.Y.S.2d 205; Alaimo v. D&F Tr., 35 A.D.2d 776, 316 N.Y.S.2d 690; Goldberg v. Soifer, 30 A.D.2d 533, 291 N.Y.S.2d 171). ......
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