Amodeo v. Radler

89 A.D.2d 594, 452 N.Y.S.2d 471, 1982 N.Y. App. Div. LEXIS 17675

Opinion

In a medical malpractice action, defendant Bruce Radler appeals from an order of the Supreme Court, Queens County (Calabretta, J.), dated August 25, 1981, which denied, as moot, his motion for summary judgment dismissing the action as against him for failure of plaintiffs to timely serve a bill of particulars pursuant to a prior conditional order of preclusion. Order reversed, on the law, with $50 costs and disbursements and motion for summary judgment dismissing the action as against defendant Radler granted. The record in this case and the arguments raised by former counsel to the plaintiffs establish only law office failure which is, by law, not a reasonable excuse for a delay in complying with a conditional preclusion order for a period of more than three months. (See Gohery v Spartan Concrete Corp., 85 AD2d 678, affd 56 NY2d 785.) Plaintiffs have also failed to establish the legal merits of this action by an affidavit from a physician competent to attest to the meritorious nature of their claim. Damiani, J. P., O’Connor, Thompson and Brown, JJ., concur.