Horvath v. Bayonne Hospital

99 A.D.2d 824, 472 N.Y.S.2d 418, 1984 N.Y. App. Div. LEXIS 17229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1984
• Status: Published

Opinion

In a medical malpractice action, the appeals are from three orders of the Supreme Court, Richmond County (Goldberg, J.), all dated February 2, 1983, which denied the defendants’ motions to dismiss the action based upon plaintiff’s failure to timely serve a complaint. Orders reversed, on the law and as a matter of discretion, without costs or disbursements, and defendants’ motions to dismiss the complaint granted. In her opposition to defendants’ motions, the plaintiff failed to demonstrate a reasonable excuse for her delay in serving the complaint and failed to establish the legal merits of her claim by an affidavit containing evidentiary facts by a medical expert. The excuse proffered by plaintiff’s attorney for the delay — that the case was complicated and required more research — is clearly insufficient in view of the fact that the attorney possessed the same general information at the time the summons was served that he had when he eventually asserted the general allegations in the complaint (see Cohen v First Nat. City Bank, 75 AD2d 837, affd 52 NY2d 863). Moreover, plaintiff’s affidavit was inadequate on its face as it was merely conclusory and failed to demonstrate the existence of a meritorious claim (see O’Halloran v Eller, 43 AD2d 955; Harris v Brooklyn Hosp., 81 AD2d 658; Hargett v Health & Hosps. Corp., 88 AD2d 633). Accordingly, it was an abuse of the court’s discretion to have denied the defendants’ motions. Lazer, J. P., Gibbons, Thompson and Boyers, JJ., concur.