Akler v. Booth Memorial Hospital Medical Center

Appellate Division of the Supreme Court of New York

Akler v. Booth Memorial Hospital Medical Center

285 A.D.2d 438, 727 N.Y.S.2d 337, 2001 N.Y. App. Div. LEXIS 7348

Appellate Division of the Supreme Court of the State of New York·Decided July 2, 2001·Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Milano, J.), entered September 1, 2000, which dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

After properly being served with a 90-day notice, the plaintiffs failed to comply therewith by either filing a note of issue or moving, before the default date, to vacate the notice or extend the 90-day period (see, Turman v Amity OBG Assocs., 170 AD2d 668). Accordingly, to avoid dismissal pursuant to CPLR 3216, the plaintiffs were required to provide a reasonable excuse for their default and to demonstrate a meritorious cause of action (see, CPLR 3216; Basso v Lessing’s Inc., 274 AD2d 488). The plaintiffs failed to satisfy either requirement. Accordingly, the Supreme Court properly dismissed the complaint. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.

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—In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Milano, J.), entered September 1, 2000, which dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

After properly being served with a 90-day notice, the plaintiffs failed to comply therewith by either filing a note of issue or moving, before the default date, to vacate the notice or extend the 90-day period (see, Turman v Amity OBG Assocs., 170 AD2d 668). Accordingly, to avoid dismissal pursuant to CPLR 3216, the plaintiffs were required to provide a reasonable excuse for their default and to demonstrate a meritorious cause of action (see, CPLR 3216; Basso v Lessing’s Inc., 274 AD2d 488). The plaintiffs failed to satisfy either requirement. Accordingly, the Supreme Court properly dismissed the complaint. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.

Akler v. Booth Memorial Hospital Medical Center, 285 A.D.2d 438, 727 N.Y.S.2d 337, 2001 N.Y. App. Div. LEXIS 7348 (N.Y. Ct. App. 2001).

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285 A.D.2d 438 (Akler v. Booth Memorial Hospital Medical Center) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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