Quigley by Kantrowitz v. Jabbur

• Decision Date: 30 October 1986
• Citation: 507 N.Y.S.2d 497,124 A.D.2d 398
• Parties: Kelly QUIGLEY, an Infant, by Beverly KANTROWITZ, Her Mother, et al., Respondents, v. Munir JABBUR, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 497

507 N.Y.S.2d 497

124 A.D.2d 398

Kelly QUIGLEY, an Infant, by Beverly KANTROWITZ, Her Mother et al., Respondents, v. Munir JABBUR, Appellant, et al., Defendants.

Supreme Court, Appellate Division Third Department.

Oct. 30, 1986.

Carter, Conboy, Bardwell, Case & Blackmore (Brian P. Krzykowski, of counsel), Albany, for appellant.

Taub & Starrs, (John P. Starrs, of counsel), Albany, for respondents.

Before MAIN, J.P., and CASEY, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court at Special Term (Kahn, J.), entered July 10, 1985 in Rensselaer County, which denied defendant Munir Jabbur's motion for a final order dismissing the complaint against him.

Plaintiffs commenced the instant medical malpractice action seeking damages for personal injuries allegedly caused by defendants' negligence. Thereafter, the parties commenced discovery and a demand was made upon plaintiffs for discovery and inspection of certain hospital records relative to the medical treatment received by the infant plaintiff subsequent to the alleged medical malpractice. Plaintiffs failed to comply with this demand and, on May 25, 1984, a conditional order was entered dismissing the complaint against defendant Munir Jabbur unless plaintiffs complied with the demand within 30 days. Plaintiffs then delivered the requested material to defendant Albany Medical Center Hospital, but inadvertently failed to transmit the same to Jabbur. Some eight months later, Jabbur brought on the instant CPLR 3126 motion for a final order of dismissal. Special Term denied the motion and ordered plaintiffs to deliver the requested materials to Jabbur within 10 days.

On appeal Jabbur contends that Special Term abused its discretion in relieving plaintiffs of their default since plaintiffs' papers in opposition to the motion for dismissal did not include an affidavit of a physician attesting to the merits of plaintiffs' claim. For the following reasons we reverse.

It is not contested that plaintiffs' failure to furnish Jabbur with the discovery materials demanded was entirely attributable to law office failure. Accordingly, in seeking relief from the resulting default, plaintiffs were required to furnish an affidavit of merit demonstrating the meritoriousness of their claim (CPLR 2004, 5015[a] ). In a medical malpractice action, expert medical opinion is required to demonstrate merit as to matters not within the ordinary experience and knowledge of lay persons (Fiore v. Galang, 64 N.Y.2d 999, 1001, 489 N.Y.S.2d 47, 478 N.E.2d 188; Canter v. Mulnick, 60 N.Y.2d 689, 691, 468 N.Y.S.2d 462, 455 N.E.2d 1257; Dick v. Samaritan Hosp., 115 A.D.2d 917, 496 N.Y.S.2d 814; Hatcher v. City of New York, 99 A.D.2d 481, 470 N.Y.S.2d 420). The negligence alleged in the instant case, the failure to diagnose and render appropriate care and treatment for a blood clot which developed as a result of the alleged failure to properly apply and remove a cast on the infant plaintiff's leg, pertains to the level of care ordinarily expected of a physician in the community and does not encompass matters within the ordinary experience and knowledge of a lay person (see, Fiore v. Galange, supra; Canter v. Mulnick, 93 A.D.2d 751, 752, 461 N.Y.S.2d 305, affd. 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257). Therefore, since plaintiffs failed to submit competent medical evidence, either from a treating physician or by an expert whose opinion was based on the available medical records, regarding the merits of the medical...