Elbaz v. Lieb

269 A.D.2d 489, 704 N.Y.S.2d 499, 2000 N.Y. App. Div. LEXIS 1994

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2000
• Status: Published

Opinion

—In an action to recover damages for dental malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Levine, J.), dated June 21, 1999, which denied their motion pursuant to CPLR 3012 (b) to dismiss the action on the ground that the plaintiff failed to timely serve a complaint.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the action is dismissed.

The Supreme Court improvidently exercised its discretion in denying the defendants’ motion pursuant to CPLR 3012 (b) to dismiss the action on the ground that the plaintiff failed to timely serve a complaint. The plaintiff failed to submit an affidavit of merit by an expert (see, Culley v Morrison, 247 AD2d 356; Snyder v Blinder, 230 AD2d 728; Gibson v Victory Mem. Hosp., 221 AD2d 503), and the excuses proffered for the almost eight-month delay were not reasonable (see, Bravo v New York City Hous. Auth., 253 AD2d 510; Weiss v Kahan, 209 AD2d 611; Iagrossi v Gerber, 205 AD2d 586). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.