Herrington v. Saratoga Hospital

202 A.D.2d 901, 609 N.Y.S.2d 120, 1994 N.Y. App. Div. LEXIS 2807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1994
• Status: Published

Opinion

Casey, J.

Appeal from an order of the Supreme Court (Brown, J.), entered March 25, 1993 in Saratoga County, which denied defendants’ motion to dismiss the complaint for want of prosecution.

This medical malpractice action was commenced against defendants in January 1990. Issue was joined and certain pretrial proceedings were conducted. In September 1992, defendants served a demand upon plaintiff’s attorney pursuant to CPLR 3216 to file a note of issue within 90 days. The 90-day period expired on or about December 15, 1992 without any attempt at compliance. Accordingly, defendants moved to dismiss the action in January 1993. In response to the motion, plaintiff’s attorney filed an affidavit which stated that he had left his prior law firm and that he never received the demand because it was not forwarded to him. Significantly, plaintiff failed to file an affidavit of merit by a medical expert demonstrating malpractice on behalf of defendants. Plaintiff submitted a letter from a medical doctor setting forth certain findings in regard to plaintiff’s condition. However, the letter is unsworn and, in any event, fails to indicate that defendants’ acts constituted a deviation from accepted medical standards and were a competent producing cause of plaintiff’s claimed injuries. Plaintiff therefore failed to make the required showing (see, Fiore v Galang, 64 NY2d 999) and Supreme Court erred in denying defendants’ motion to dismiss (see, Mosberg v Elahi, 80 NY2d 941). Accordingly, the order should be reversed and defendants’ motion granted.

Cardona, P. J., Mercure, Weiss and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted and complaint dismissed.