Geise v. Wetherill

238 A.D.2d 952, 661 N.Y.S.2d 559, 1997 N.Y. App. Div. LEXIS 4813

Opinion

—Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: In response to the demand of defendants pursuant to CPLR 3216, plaintiff neither filed a note of issue nor moved to vacate the 90-day demand or to extend the time within which to file a note of issue. Consequently, to avoid dismissal, it was necessary for plaintiff to demonstrate a justifiable excuse for the delay and a meritorious cause of action (see, Baczkowski v Collins Constr. Co., 89 NY2d 499). Plaintiff did neither. Plaintiff’s virtual inaction since 1991 when the action was commenced was unexplained. Plaintiff’s attempt to blame the entire delay upon the failure of counsel for defendants to provide plaintiff with the medical records of plaintiff’s decedent is not reasonable in light of plaintiff’s failure to demand production of records or to move to compel their production. Moreover, the affidavit of plaintiff’s attorney is patently insufficient to demonstrate merit in this medical malpractice action (see, Mosberg v Elahi, 80 NY2d 941, 942). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Dismiss Complaint.) Present— Green, J. P., Pine, Lawton, Doerr and Fallon, JJ.