Gordon v. Shore Park Pharmacy, Inc.

70 A.D.2d 651, 417 N.Y.S.2d 10, 1979 N.Y. App. Div. LEXIS 12105

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1979
• Status: Published

Opinion

— In a medical and pharmaceutical malpractice action, plaintiff appeals from an order of the Supreme Court, Nassau County, dated March 16, 1978, which granted the motions of defendants Schonberger and Dlugash to dismiss the action as to them for failure to serve a complaint after receiving a demand therefor. Order reversed, without costs or disbursements, and motions to dismiss denied on condition that plaintiff’s attorney personally pay the sum of $125 to each of the individual defendants within 20 days after service upon plaintiff of a copy of the order to be made hereon, together with notice of entry thereof; in the event such condition is not complied with, order affirmed, with $50 costs and disbursements. Where, as here, the action appears to have some merit despite the unsatisfactory affidavit submitted in opposition to the motions to dismiss, the alleged malpractice resulted in death, the delay was not inordinately protracted, the default was not willful or with any intention to abandon the action, and defendants have not been prejudiced, plaintiff should not be deprived of his day in court (see Carrón v De Granpre, 55 AD2d 712). Suozzi, J. P., Lazer, Cohalan and Martuscello, JJ., concur.