McKay v. Smithtown General Hospital

Appellate Division of the Supreme Court of New York

McKay v. Smithtown General Hospital

42 A.D.2d 594, 345 N.Y.S.2d 78, 1973 N.Y. App. Div. LEXIS 4161

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1973

StatusPublished

Cited by1 cases

This text of 42 A.D.2d 594 (McKay v. Smithtown General Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKay v. Smithtown General Hospital, 42 A.D.2d 594, 345 N.Y.S.2d 78, 1973 N.Y. App. Div. LEXIS 4161 (N.Y. Ct. App. 1973).

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Opinion

In a medical malpractice action to recover damages for personal injuries, defendant Fox appeals from an order of the Supreme Court, Suffolk County, dated June 13, 1972, which (1) denied motions by him and by defendant Plastaras to dismiss the action for failure to prosecute and (2) granted plaintiff’s cross motion to permit plaintiff to serve a complaint. Order reversed as to defendant Fox, without costs; said defendant’s motion granted; and plaintiff’s cross motion denied as to said1 defendant. In our opinion, plaintiff failed to establish a reasonable excuse for his delay and did not provide the court at Special Term with an affidavit of merits (Keating v. Smith, 20 A D 2d 141; Sortino v. Fisher, 20 A D 2d 25). Further, where a defendant rejects what he considers to be an untimely service of the complaint, the service of the complaint alone will not render the motion to dismiss the action academic (Gerson v. Finhelstein, 29 A D 2d 552). Rabin, P. J., Hopkins, Munder, Martuscello and Latham, JJ., concur.

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In a medical malpractice action to recover damages for personal injuries, defendant Fox appeals from an order of the Supreme Court, Suffolk County, dated June 13, 1972, which (1) denied motions by him and by defendant Plastaras to dismiss the action for failure to prosecute and (2) granted plaintiff’s cross motion to permit plaintiff to serve a complaint. Order reversed as to defendant Fox, without costs; said defendant’s motion granted; and plaintiff’s cross motion denied as to said1 defendant. In our opinion, plaintiff failed to establish a reasonable excuse for his delay and did not provide the court at Special Term with an affidavit of merits (Keating v. Smith, 20 A D 2d 141; Sortino v. Fisher, 20 A D 2d 25). Further, where a defendant rejects what he considers to be an untimely service of the complaint, the service of the complaint alone will not render the motion to dismiss the action academic (Gerson v. Finhelstein, 29 A D 2d 552). Rabin, P. J., Hopkins, Munder, Martuscello and Latham, JJ., concur.

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Bluebook (online)

42 A.D.2d 594, 345 N.Y.S.2d 78, 1973 N.Y. App. Div. LEXIS 4161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-smithtown-general-hospital-nyappdiv-1973.

Opinion

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