Tierney v. OB-GYN Associates of Ithaca, OB-GYN

• Decision Date: 29 October 1992
• Docket Number: OB-GYN
• Citation: 186 A.D.2d 926,588 N.Y.S.2d 950
• Parties: Sharon TIERNEY et al., Appellants, v.ASSOCIATES OF ITHACA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 950

588 N.Y.S.2d 950

186 A.D.2d 926

Sharon TIERNEY et al., Appellants, v. OB-GYN ASSOCIATES OF ITHACA et al., Respondents.

Supreme Court, Appellate Division Third Department.

Oct. 29, 1992.

Hancock & Estabrook (Kathy R. Lamb, of counsel), Syracuse, for appellants.

Martin, Ganotis, Brown, Mould & Currie, P.C. (Dennis Gruttadaro, of counsel), Rochester, for respondents.

Before WEISS, P.J., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court (Monserrate, J.), entered March 18, 1991 in Tompkins County, which granted defendants' motion to dismiss the complaint for failure to prosecute.

Once plaintiffs were served with the 90-day demand pursuant to CPLR 3216, they should have either complied with the notice by filing a note of issue or moved before the default date to extend the 90-day time period (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553, 543 N.Y.S.2d 483). Instead, just a few days prior to the expiration date, plaintiffs' counsel sent a letter to defendants' counsel indicating that a note of issue would be filed if defendants agreed to a deposition date. No further action was taken until defendants moved to dismiss, almost three years after the expiration of the 90-day period.

To avoid having their action dismissed, plaintiffs were required to demonstrate both a justifiable excuse for the delay and a meritorious cause of action (see, Cleary v. Starkweather, 165 A.D.2d 967, 561 N.Y.S.2d 855; Juracka v. Ferrara, 137 A.D.2d 921, 922, 524 N.Y.S.2d 885, lv. dismissed, 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47). With respect to the latter issue, plaintiffs failed to submit the required expert medical opinion evidence (see, Mosberg v. Elahi, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353 [1992], aff'g, 176 A.D.2d 710, 574 N.Y.S.2d 793; Perez v. Long Is. Jewish-Hillside Med. Center, 173 A.D.2d 530, 531, 570 N.Y.S.2d 130). Even if we accept plaintiffs' contention that their physician's unsworn letter satisfied this requirement (cf., Franck v. CNY Anesthesia Group, 175 A.D.2d 605, 572 N.Y.S.2d 547; Brice v. Westchester Community Health Plan, 143 A.D.2d 170, 171, 531 N.Y.S.2d 621), plaintiffs nevertheless failed to establish a justifiable excuse for the delay. The record reveals that plaintiffs did not actively pursue this case. Although they claim that defendants contributed to the delay by refusing to be deposed, there is nothing in the record to support this assertion and plaintiffs never complained of defendants' actions until the present motion (see, Turman v. Amity OBG Assocs., 170 A.D.2d 668, 669, 567 N.Y.S.2d 87; Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 424 N.Y.S.2d 911, aff'd, 53 N.Y.2d 653, 438 N.Y.S.2d 998, 421 N.E.2d 118). Under the circumstances, Supreme Court did not abuse its discretion in dismissing the action for failure to prosecute (see, Brice v. Westchester Community Health Plan, supra, 143 A.D.2d at 171, 531 N.Y.S.2d 621).

ORDERED that the order is affirmed, with costs.

YESAWICH, Justice (dissenting).

I respectfully dissent.

While plaintiffs have not actively prosecuted this case, it is equally clear that defendants' conduct affirmatively added to the delay in prosecution. Because defendants' contribution to the delay consisted of more than simply inaction, their motion to dismiss for failure to prosecute should not have been granted (see, Schoenhals v. Kissing Bridge Corp., 96 A.D.2d 711, 465 N.Y.S.2d 375; Brown v. Weissberg, 22 A.D.2d 282, 284, 254 N.Y.S.2d 628).

This is a medical malpractice claim, the thrust of which is that plaintiff Sharon Tierney was allegedly negligently cared for during her pregnancy and further that Adam, her newborn son, suffered grave and permanent injuries because defendants failed to timely carry out a Caesarean section. Issue was joined in mid-1981 and a bill of particulars served in 1982. No further action was apparently taken for several years. It was suggested at oral argument and inferable from the affidavit of plaintiffs' counsel that plaintiffs were waiting to see how Adam developed--his injuries assertedly include "mild developmental and growth retardation * * * sluggish and dull movements * * * general malaise [and] balance difficulties"--before undertaking to assess the extent of his medical condition and disabilities.

In August 1986 defendants served a 90-day demand pursuant to CPLR 3216. Plaintiffs requested and were accorded several extensions for the purpose of completing discovery. Notices to take defendants' depositions were served in November 1986, and in February 1987 plaintiffs' counsel requested of defendants' counsel information relative to the rescheduling of those depositions. Defendants did not provide any dates or times; neither did they move to dismiss pursuant to their 90-day demand. However, by letter dated August 14, 1987, insurance carriers for several of the defendants sought to arrange a pediatric neurological examination of Adam; their initial request in 1985 had not been complied with.

In February 1988, defendants served another CPLR 3216 demand. At this juncture, plaintiffs were diligently preparing their case. Upon receiving this second demand, plaintiffs' counsel, in May 1988, wrote defendants' counsel enclosing yet another...