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Yule v. Comerford

Document Cited authorities 1 Cited in 18 Precedent Map Related
Decision Date27 May 1988
Citation140 A.D.2d 981,529 N.Y.S.2d 653
PartiesDonna J. YULE, Respondent, v. John T. COMERFORD and Comerford and Cummings, M.D., P.C., Appellants.
CourtNew York Supreme Court — Appellate Division

Page 653

529 N.Y.S.2d 653

140 A.D.2d 981

Donna J. YULE, Respondent, v. John T. COMERFORD and Comerford and Cummings, M.D., P.C., Appellants.

Supreme Court, Appellate Division Fourth Department.

May 27, 1988.

Martin, Ganotis & Brown, P.C. by Joseph Rodak, Syracuse, for appellants.

Donna J. Yule, pro se.

Before DOERR, J.P., and DENMAN, BOOMER, PINE and DAVIS, JJ.

MEMORANDUM:

Defendants moved to dismiss the complaint alleging medical malpractice because of plaintiff's failure to comply with their CPLR 3216 demand to file a note of issue. In response to the motion, plaintiff failed to submit an affidavit of merit. The court granted the motion conditionally, giving plaintiff an additional 90 days to comply with the demand, and stating that it would not insist upon an affidavit of merit because plaintiff was representing herself in the action. This was error.

"[I]n defending a proper motion to dismiss for neglect it is essential that plaintiff supply an affidavit of merit. Such affidavit, by the party or another person with knowledge of the facts, must contain evidentiary facts establishing that plaintiff has a viable cause of action. It must be as good as the kind of affidavit which could defeat a motion for summary judgment on...

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7 cases
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • September 21, 2010
    ...470 (1st Dept.2007)), does not absolve a plaintiff of his or her duty to actually prosecute the case. See Yule v. Comerford, 140 A.D.2d 981, 982, 529 N.Y.S.2d 653, 653 (4th Dept.1988) (holding that the trial court erred when it did not insist on an affidavit of merits because the plaintiff ......
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • September 21, 2010
    ...(1st Dept. 2007)), does not absolve a plaintiff of his or her duty to actually prosecute the case. See Yule v. Comerford, 140 A.D.2d 981, 982, 529 N.Y.S.2d 653, 653 (4th Dept. 1988) (holding that the trial court erred when it did not insist on an affidavit of merits because the plaintiff wa......
  • Redding v. Saunders
    • United States
    • New York Supreme Court — Appellate Division
    • March 17, 1995
    ...excuse for untimely service of the complaint (see, Brooks v. Inn at Saratoga Assn., 88 A.D.2d 921, 591 N.Y.S.2d 625; Yule v. Comerford, 140 A.D.2d 981, 529 N.Y.S.2d 653), and plaintiff in her affidavit failed to establish merit to the action. In a medical malpractice action, "expert medical......
  • Lama v. Mohammad
    • United States
    • New York Supreme Court — Appellate Term
    • October 1, 2010
    ...ground that there is no issue of fact"( Sortino v. Fisher, 20 A.D.2d 25, 31-32, 245 N.Y.S.2d 186 [1963]; see also Yule v. Comerford, 140 A.D.2d 981, 529 N.Y.S.2d 653 [1988]; Canter v. Mulnick, 93 A.D.2d 751, 461 N.Y.S.2d 305 [1983] ). The existence of a serious injury is a necessary element......
    • Request a trial to view additional results

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