Salch v. Paratore

Decision Date03 November 1983
Citation60 N.Y.2d 851,470 N.Y.S.2d 138,458 N.E.2d 379
Parties, 458 N.E.2d 379 John B. SALCH, Appellant, v. Louis PARATORE et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division, 92 A.D.2d 889, 459 N.Y.S.2d 876, should be modified to reverse the dismissal of the complaint against defendantLouis Paratore and as to him to remit to the Appellate Division to consider the matter in the exercise of the discretion granted by CPLR 2005 and, as so modified, the order should be affirmed.

With respect to the medical malpractice defendants, Vassar Brothers Hospital and Dr. Isidro Ferrando, plaintiff's failure to file an affidavit of merits mandates affirmance of the Appellate Division's dismissal for failure timely to serve and file a note of issue (Amodeo v. Radler, 59 N.Y.2d 1001, 466 N.Y.S.2d 953, 453 N.E.2d 1242;Sortino v. Fisher, 20 A.D.2d 25, 31-32, 245 N.Y.S.2d 186).

The same is not true, however, of the negligence cause of action against defendantLouis Paratore.The complaint, verified by plaintiff on the basis of personal knowledge and which detailed Paratore's acts of negligence, was a sufficient affidavit of merits (CPLR 105, subd. [s];seeBethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015, 414 N.E.2d 395).Accordingly, the Appellate Division erred in holding, as a matter of law, * that in denying defendant Paratore's CPLR 3216motion to dismiss for failure to comply with the 3216 demand, Special Term abused its discretion (Brady v. Reynolds Printasign Co., 59 N.Y.2d 979, 466 N.Y.S.2d 659, 453 N.E.2d 1076;Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71).

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE, JJ., concur.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals(22 NYCRR 500.2[g] ), order modified, with costs to plaintiff against defendant Paratore, and case remitted to the Appellate Division, Second Department, for further proceedings as to defendant Paratore in accordance with the memorandum herein and, as so modified, affirmed, with costs to defendants Vassar Brothers Hospital and Ferrando against plaintif...

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    • March 8, 2011
    ...claim requires dismissal of the complaint ( see, Reed v. Friedman, 117 A.D.2d 661, 498 N.Y.S.2d 399; see also, Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379; Canter v. Mulnick, 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257; Stolowitz v. Mt. Sinai Hosp., 60 N.Y.2d 685......
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    • October 7, 1991
    ...attest to the meritorious nature of her claim mandates dismissal of the complaint (see, Fiore v. Galang, supra; Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379; Reed v. Friedman, 117 A.D.2d 661, 498 N.Y.S.2d 399; Vernon v. Nassau County Med. Center, 102 A.D.2d 852, 477 N.......
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