Dorgan v. Dunda

165 A.D.2d 949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 20, 1990
• Status: Published

Opinion

Appeal from an order of the Supreme Court (Tait, Jr., J.), entered September 22, 1989 in Madison County, which, inter alia, denied the motion of defendants James G. Dunda and George Dutkewych to dismiss the action against them for failure to serve a complaint.

Supreme Court properly denied the motion to dismiss the action due to plaintiffs’ failure to timely serve the complaint. Plaintiffs have offered both a satisfactory excuse for the delay and an adequate affidavit of merit (cf., Dattoria v Dattoria, 161 AD2d 1009). An affidavit by the physician for plaintiffs’ counsel detailed the health problems which had caused the delay by counsel in serving the complaint. Therefore, since the initial delay of 13 days in serving the complaint was slight, the default unintentional and no prejudice shown, the excuse offered was sufficient (see, Bayer v Domino Media, 147 AD2d 413). Additionally, the affidavit of merit by plaintiffs’ medical expert sufficiently alleged that defendants’ actions departed from accepted medical standards and that such departure was a proximate cause of the injuries alleged in plaintiffs’ complaint (cf., Daponte v Weber, 134 AD2d 319, lv denied 71 NY2d 801). As to the remaining contentions raised on this appeal, they have been examined and found to be lacking in merit.

Order affirmed, with costs.

Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.