Perez v. Long Island Jewish-Hillside Medical Center
| Decision Date | 13 May 1991 |
| Docket Number | JEWISH-HILLSIDE |
| Citation | 173 A.D.2d 530,570 N.Y.S.2d 130 |
| Parties | Felipe N. PEREZ, et al., Respondents, v. LONG ISLANDMEDICAL CENTER, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Bower & Gardner, New York City (Steven J. Ahmuty, Jr., and Edward J. Guardaro, Jr., of counsel), for appellant Long Island Jewish-Hillside Medical Center.
Wortman, Fumuso, Kelly, DeVerna & Snyder, Hauppauge (Roger B. Lawrence, of counsel), for appellant Michael J. Atkiss.
Herman Yellon, Mineola, for respondents.
Before KUNZEMAN, J.P., and BALLETTA, MILLER and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, etc., the defendants separately appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated November 8, 1989, which denied their separate motions to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute.
ORDERED that the order is reversed, on the law, with one bill of costs, the motions are granted, and the complaint is dismissed.
We agree with the defendants' contention that the Supreme Court erred in denying their motions to dismiss the complaint due to the plaintiffs' failure to prosecute. The record reveals that the instant malpractice action was commenced in 1981, predicated upon acts of alleged malpractice which were committed in 1978. The plaintiff Felipe Perez sustained an injury to his left little finger and was treated by the defendants. He claims that he sustained a loss of mobility in his finger as a result of the defendants' negligence. In general, however, the plaintiffs have failed to actively pursue this matter. Twice the defendants were forced to resort to judicial intervention to compel discovery. It appears that the plaintiffs responded to their disclosure obligations only under threat of preclusion or dismissal. Under circumstances such as these, although the instant delay in serving a note of issue and certificate of readiness was comparatively short, we find the plaintiffs' excuse, that counsel's long-time secretary had retired, thus disrupting the efficient functioning of his law office, to be insufficient to constitute a justifiable excuse for the delay (see, Nichols v. Agents Serv. Corp., 133 A.D.2d 912, 520 N.Y.S.2d 282).
Furthermore, the plaintiffs' opposition to the defendants' separate motions was not supported by an affidavit of merit by an expert physician, a requirement crucial to support this...
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