Rosenburgh v. University of Rochester (Strong Memorial Hospital)
| Decision Date | 09 December 1977 |
| Citation | 60 A.D.2d 756,400 N.Y.S.2d 607 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Ethel M. ROSENBURGH, Appellant, v. UNIVERSITY OF ROCHESTER (STRONG MEMORIAL HOSPITAL), Respondent. |
Jay M. Friedman, Rochester, for appellant.
Lines, Wilkens, Osborn & Beck, Stephen V. Lines, Rochester, for respondent.
Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.
Plaintiff appeals from an order and judgment dismissing her complaint alleging that while a patient in defendant hospital she was injured as a result of defendant's negligence. It is claimed that the injury occurred when plaintiff fell out of bed due to the premature removal of her restraints and the discharge of her private-duty nurses while she, an 84 year old woman, was in a disoriented state. The dismissal was on the ground that plaintiff had unreasonably neglected to proceed in the action by failing to file requested medical malpractice mediation papers with the Clerk of the Supreme Court of Monroe County in compliance with Judiciary Law, § 148-a.
Plaintiff was injured on April 20, 1972. On March 29, 1973, the action was commenced by service of a summons and complaint. Subsequently, plaintiff filed a note of issue, served a bill of particulars, and participated in examinations before trial and discovery and inspection. The case had not yet reached the day calendar when, on September 1, 1974, section 148-a of the Judiciary Law, which requires mediation of medical malpractice cases by a medical malpractice mediation panel prior to trial, became effective.
On October 23, 1975, the Supreme Court Clerk requested that both parties to the action file with him all materials required under section 148-a of the Judiciary Law so that a medical malpractice panel hearing could be arranged. No further request for the materials was made. Plaintiff's attorney was not alerted to the fact that he had neglected to file the required mediation papers until March 2, 1977, when he received a notice of motion to dismiss for failure to file mediation papers with respect to another negligence case involving the same defendants. The following day, the mediation papers in the instant action were filed with the clerk. On April 7, 1977, the notice of motion to dismiss was served in this action.
Plaintiff had proceeded diligently in all matters except the filing of the mediation papers. There is no authority for dismissal, or, for that matter, any sanction for failure...
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