Anderson v. Smith

191 A.D.2d 196, 595 N.Y.S.2d 674

Opinion

—Orders, Supreme Court, New York County, entered on or about December 23, 1991 (Kristin Booth Glen, J.), and on or about August 14, 1992 (Burton S. Sherman, J.), which, granted defendant’s motion to dismiss the complaint pursuant to CPLR 3216 unless plaintiffs filed a note of issue within seven days, and granted plaintiffs’ motion for leave to serve an amended bill of particulars and to compel production of defendant’s examining physician’s report, unanimously affirmed, without costs.

The IAS Court properly entertained the motion to dismiss, since the only proof of service filed with the County Clerk shows that the motion was made after the 90-day period of CPLR 3216 had passed. As for the merits of the motion, under the circumstances, plaintiffs, then pro se, set forth reasonable excuses for their failure to timely file the note of issue and to obtain a physician’s affidavit; it is noted that soon after retaining new counsel such affidavit was provided. While the IAS Court stated that plaintiffs’ motion was granted, and then went on to articulate reasons as to two branches of the motion but was silent as to the request for expert witness information, plaintiffs will have another opportunity to seek such relief when a new trial date is set, at which time defendant’s assertion that he intends to retain an expert medical witness should be considered. Concur — Murphy, P. J., Carro, Rosenberger and Ross, JJ.