Cabrera v. New York City Health & Hospitals Corp.

249 A.D.2d 186, 671 N.Y.S.2d 268, 1998 N.Y. App. Div. LEXIS 4695

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1998
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered February 29, 1996, which granted defendants’ motion to dismiss the complaint for failure to comply with General Municipal Law § 50-h (5), unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, defendants’ motion denied and the complaint reinstated upon condition that, within 30 days of service upon her of a copy of this Court’s order with notice of entry, plaintiff appears for examination pursuant to General Municipal Law § 50-h at a mutually agreed time and place, and defendants’ time to answer the complaint is extended to 20 days after the date of plaintiff’s examination.

In this medical malpractice and wrongful death action arising from the death of plaintiff’s father in Jacobi Hospital, the absence of any notice in the file of plaintiffs former attorneys and plaintiffs sworn statement that she was never informed by them of any examination constitute a sufficiently reasonable excuse for her nonappearance to warrant denial of the drastic remedy of dismissal. Reinstatement of the complaint is nevertheless conditioned upon plaintiffs compliance with defendants’ demand for an examination pursuant to General Municipal Law § 50-h. Concur — Sullivan, J. P., Milonas, Mazzarelli and Andrias, JJ.