Garten v. Mazlin

Appellate Division of the Supreme Court of New York

Garten v. Mazlin

244 A.D.2d 316, 665 N.Y.S.2d 539, 1997 N.Y. App. Div. LEXIS 11040

Appellate Division of the Supreme Court of the State of New York·Decided November 3, 1997·Published·Cited by 1 cases

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Lama, J.), entered June 28, 1996, which, upon denying their motion to vacate a conditional order of dismissal, dismissed the complaint.

Ordered that the appeal by the plaintiff Christopher Garten is dismissed, for failure to timely perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [e]); and it is further,

Ordered that the judgment is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

In view of the appellant’s failure to provide a reasonable excuse for the extensive delay in serving a bill of particulars, to comply with the court’s conditional order of dismissal, and to submit an affidavit of merit from a physician, the court did not improvidently exercise its discretion in dismissing her complaint (see, Pantaliano v Goodman, 214 AD2d 607; Murdock v Center for Special Surgery, 199 AD2d 482; Barbera v DeRostaing, 140 AD2d 660). O’Brien, J. P., Thompson, Santucci and Joy, JJ., concur.

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—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Lama, J.), entered June 28, 1996, which, upon denying their motion to vacate a conditional order of dismissal, dismissed the complaint.

Ordered that the appeal by the plaintiff Christopher Garten is dismissed, for failure to timely perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [e]); and it is further,

Ordered that the judgment is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

In view of the appellant’s failure to provide a reasonable excuse for the extensive delay in serving a bill of particulars, to comply with the court’s conditional order of dismissal, and to submit an affidavit of merit from a physician, the court did not improvidently exercise its discretion in dismissing her complaint (see, Pantaliano v Goodman, 214 AD2d 607; Murdock v Center for Special Surgery, 199 AD2d 482; Barbera v DeRostaing, 140 AD2d 660). O’Brien, J. P., Thompson, Santucci and Joy, JJ., concur.

Garten v. Mazlin, 244 A.D.2d 316, 665 N.Y.S.2d 539, 1997 N.Y. App. Div. LEXIS 11040 (N.Y. Ct. App. 1997).

Pincite

244 A.D.2d 316 (Garten v. Mazlin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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