Delia v. Ramapo General Hospital

47 A.D.2d 522, 362 N.Y.S.2d 567, 1975 N.Y. App. Div. LEXIS 8576

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1975
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injuries, defendant Mandel appeals from an order of the Supreme Court, Rockland County, entered December 19, 1973, which denied his motion to dismiss the action for failure timely to serve a complaint, pursuant to CPLR 3012 (subd. [b]). Order reversed, with $20 costs and disbursements, and motion granted. We view plaintiff’s failure to serve his complaint during the 20 months between the demand therefor and defendant’s motion to dismiss as constituting inordinate delay under the circumstances herein, and the excuse and affidavit of merits submitted in opposition to the motion as unsatisfactory. Accordingly, it was an improvident exercise of discretion to deny the motion (Wade v. Miele, 34 A D 2d 656; Geo-son v. Fmkelstem, 29 A D 2d 552; Schwartz v. National Fio-e Ins. Go. of Hartfoo-d, 25 A D 2d 727). Martuseello, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.