Scott v. Columbia Memorial Hosp.
| Decision Date | 25 November 1987 |
| Citation | 134 A.D.2d 792,522 N.Y.S.2d 257 |
| Parties | Elizabeth J. SCOTT et al., Respondents, v. COLUMBIA MEMORIAL HOSPITAL et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Hesson, Ford & Whalen (Michael J. Hutter, of counsel), Albany, for appellants.
Charles Edwin Hoag, Jr., Claverack, for respondents.
Before MAIN, J.P., and CASEY, WEISS, MIKOLL and LEVINE, JJ.
Appeal from an order of the Supreme Court (Klein, J.), entered July 23, 1986 in Columbia County, which denied defendants' motion to dismiss the complaint for want of prosecution.
Plaintiff Elizabeth J. Scott (hereinafter plaintiff) was injured on December 9, 1980 while being interviewed for treatment at defendant Columbia Memorial Hospital in Columbia County. An employee of the hospital, defendant Michael Gorman, allegedly pushed a portable X-ray machine over plaintiff's left foot. After a delay of 45 minutes, plaintiff's foot was X-rayed. No bone fracture was discovered. An Ace bandage was applied but nothing else was done. She returned to the hospital on December 15, 1980 and reported that her foot was turning black. Plaintiff was then treated with Tylenol and codeine and supplied with crutches.
Plaintiff then timely commenced an action against the hospital alleging claims in medical malpractice and negligence. Plaintiff's husband also alleged derivative claims against the hospital. Subsequently, plaintiff and her husband commenced a negligence action against Gorman. The actions were eventually consolidated for trial. The last activity in the action was the service of a bill of particulars on or about March 19, 1984 before defendants served plaintiffs by mail with a written demand to resume prosecution of the action and to serve and file a note of issue within 90 days pursuant to CPLR 3216(b)(3). Defense counsel granted a 30-day extension of the 90-day period at the request of plaintiffs' counsel. No further extension was sought. Defendants moved for dismissal of the action pursuant to CPLR 3216(e) on November 20, 1985. Plaintiffs, however, filed a note of issue and a certificate of readiness on November 20, 1985 in the Columbia County Clerk's Office, and served the same on defendants' counsel by mail.
Supreme Court issued an order denying defendants' motion to dismiss on the ground that since plaintiffs' service and filing of the note of issue preceded the receipt of the motion to dismiss, the court was precluded from reviewing either the merits of the case or the justification for the delay in filing the note of issue. This appeal by defendants ensued.
Supreme Court erroneously ruled that it was precluded from reviewing the merits of plaintiffs' action and the excuse for delay on the ground that plaintiffs' counsel filed a note of issue after the expiration of the CPLR 3216 90-day statutory period as extended but before he received defendants' notice of motion to dismiss. We reject plaintiffs' attempt to impose a fourth condition precedent not found in CPLR 3216, namely that the motion to dismiss must precede the filing of a note of issue. After a party fulfills the three statutory conditions precedent (CPLR 3216[b][1], [2], [3] ), the opposing party may then logically proceed in one of two ways: (1) timely serve and file a note of issue, or (2) fail to file within the allotted time. When a party, as here, fails to file within the allotted time and the 90-day grace period provided in the statute or any extensions thereof have expired, the court is not precluded from reviewing the merits of the action and the reasons for delay, but rather, pursuant to CPLR 3216(e), is obliged to do so. To the extent that language is found to the contrary in Fontenelle v. Glens Falls Hosp., 105 A.D.2d 933, 481 N.Y.S.2d 900, it is mere dictum and not to be followed.
Turning then to an examination of the merits of plaintiffs' causes of action for medical malpractice and negligence, it appears that plaintiffs' medical malpractice claim is without merit and must therefore be dismissed. No expert testimony is presented to demonstrate that a staff physician, resident, intern, nurse, technician or other professional employee violated some accepted standard of good professional practice (see, Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, affd. 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128). The absence of such testimony requires dismissal (see, Mossman v. Albany Med. Center Hosp., 34 A.D.2d 263, 311 N.Y.S.2d 131). However, it appears that plaintiffs can make out a prima facie case in negligence (see, Hoggard v. Otis Elevator Co., 52 Misc.2d...
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Franck v. CNY Anesthesia Group
...plaintiff's relocation to Maine shortly after commencement of the action amounts to an acceptable excuse (see, Scott v. Columbia Mem. Hosp., 134 A.D.2d 792, 522 N.Y.S.2d 257; Young v. Tompkins, supra ). Plaintiff's submission of the hospital records and the letter report of a plastic surgeo......