Stolowitz v. Mount Sinai Hosp.

• Citation: 468 N.Y.S.2d 460,455 N.E.2d 1255,60 N.Y.2d 685
• Parties: , 455 N.E.2d 1255 Alan S. STOLOWITZ et al., Respondents, v. MOUNT SINAI HOSPITAL, Appellant.
• Decision Date: 29 September 1983
• Court: New York Court of Appeals Court of Appeals

Page 460

468 N.Y.S.2d 460

60 N.Y.2d 685, 455 N.E.2d 1255

Alan S. STOLOWITZ et al., Respondents, v. MOUNT SINAI HOSPITAL, Appellant.

Court of Appeals of New York.

Sept. 29, 1983.

[60 N.Y.2d 686] Lissa Griffin, Ignatius John Melito and Thomas R. Newman, New York City, for appellant.

Douglas E. McKeon and John J. Tullman, New York City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 90 A.D.2d 712, 455 N.Y.S.2d 1014, should be modified, with costs to appellant, and the motion to dismiss the complaint granted unconditionally.

On this motion by defendant to dismiss the action for the failure of plaintiff for a period of nine months to serve a complaint, plaintiff concedes, as he must, that no affidavit of merits was submitted. Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. (Amodeo v. Radler, 59 N.Y.2d 1001, 466 N.Y.S.2d 953, 453 N.E.2d 1242; Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Sortino v. Fisher, 20 A.D.2d 25, 31-32, 245 N.Y.S.2d 186.)

In view of this disposition we have no occasion to address the contentions of the parties as to the reasonableness of the proffered excuse for the delay in serving the complaint.

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

MEYER, J., taking no part.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.