Borgia v. Interboro General Hospital

90 A.D.2d 531, 455 N.Y.S.2d 97, 1982 N.Y. App. Div. LEXIS 18581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1982
• Status: Published

Opinion

In a medical malpractice and wrongful death action, the appeal is from an order of the Supreme Court, Kings County (Bellard, J.), dated March 25,1981, which granted plaintiffs’ motion directing the appellants to accept service of plaintiffs’ verified complaint, and denied appellants’ cross motion to dismiss the action against them because of plaintiffs’ failure to serve a timely complaint. Order reversed, on the law, with $50 costs and disbursements, plaintiffs’ motion is denied, and appellants’ cross motion is granted. Under the circumstances we do not accept the poor health of plaintiffs’ attorney as a satisfactory excuse for plaintiffs’ failure to serve a timely complaint. The record reveals that plaintiffs did not serve their complaint until approximately 15 to 18 months after their attorney had returned to work following a serious illness (see Gallo v Hirsch-Fortune, Inc., 84 AD2d 806). Although counsel eventually retained another attorney to process the complaint, it would have behooved a reasonable and diligent attorney in these circumstances either to have obtained legal assistance sooner or else removed himself from the case (see Fiorletti v Kamin, 85 AD2d 620). Accordingly, since plaintiffs failed to offer any satisfactory excuse for the inordinate delay, Special Term’s denial of the appellants’ cross motion to dismiss the action as to them constituted an abuse of discretion (Gallo v Hirsch-Fortune, Inc., supra; cf. Barasch v Micucci, 49 NY2d 594). Damiani, J. P., Titone, Weinstein and Bracken, JJ., concur.