Donlan v. Albert Einstein Hospital

79 A.D.2d 583, 434 N.Y.S.2d 358, 1980 N.Y. App. Div. LEXIS 13912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1980
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered November 30, 1979, reversed, on the law, and the motion to dismiss granted, with costs and disbursements. A classic “law office failure” situation is presented on this appeal. This hospital malpractice action was commenced in November, 1977 by service of a summons sans complaint, demand for which was made several weeks thereafter. Five months after demand] a motion by plaintiff to extend time was made and granted the excuse given by plaintiff was that defendant hospital’s records were required in order to draft the complaint. Eleven months after delivery of the records was completed, the instant motion to dismiss was made, countered by a cross motion to extend time, the reason this time being claimed illegibility of the records. No explanation as to why it took so long to discover this defect was ever tendered. Plaintiff apparently lacked confidence in the reason given: a complaint was then served before the motion was decided. It was rejected for untimely service (CPLR 3012, subd [b]), properly so, we hold. Plaintiff’s delay was inexcusable, and Special Term should have granted dismissal. (See Barasch v Micucci, 49 NY2d 594.) Concur—Birns, J. P., Sandler, Sullivan, Markewich and Silverman, JJ.