Salch v. Paratore

• Decision Date: 03 November 1983
• Citation: 60 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.
• Court: New York Court of Appeals Court of Appeals

Page 138

470 N.Y.S.2d 138

60 N.Y.2d 851, 458 N.E.2d 379

John B. SALCH, Appellant, v. Louis PARATORE et al., Respondents.

Court of Appeals of New York.

Nov. 3, 1983.

[60 N.Y.2d 852] Richard S. Scanlan, White Plains, for appellant.

Thomas V. Svogun, White Plains, for Louis Paratore, respondent.

Myra I. Packman, Poughkeepsie, for Vassar Brothers Hosp., respondent.

John J. Pilkington, Mount Vernon, for Isidro Ferrando, respondent.

OPINION OF THE COURT MEMORANDUM.

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 defendant Louis 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 defendant Louis 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]; see Bethlehem 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 3216 motion 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...