Miller v. Brust

278 A.D.2d 462, 717 N.Y.S.2d 663, 2000 N.Y. App. Div. LEXIS 13858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 2000
• Status: Published

Opinions

In a consolidated action to recover damages for medical malpractice, etc., the defendants Norman M. Brust and Pension Committee-Joint Industrial Board of the Electrical Industry Medical Department separately appeal from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated January 3, 2000, as granted that branch of the plaintiffs’ motion which was to vacate so much of a prior order of the same court dated June 7, 1999, as dismissed the action insofar as asserted against them pursuant to CPLR 3216.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, that branch of the motion is denied, so much of the order dated June 7, 1999, as dismissed the action pursuant to CPLR 3216 insofar as asserted against the appellants is reinstated, and the action against the remaining defendant is severed.

It is well established that once a plaintiff is served with a 90-day notice pursuant to CPLR 3216, it is incumbent on the plaintiff to comply with the notice by timely filing a note of issue or moving for an extension of time within which to comply. If the plaintiff fails to do so, to avoid the sanction of dismissal the plaintiff is required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice, and a meritorious cause of action (see, Timko v Loreto, 263 AD2d 480; Safina v Queens-Long Is. Med. Group, 238 AD2d 395; Longacre Corp. v Better Hosp. Equip. Corp., 228 AD2d 653).

In this case, the Supreme Court issued a 90-day notice pursuant to CPLR 3216 at a compliance conference. When the plaintiffs failed to comply with the notice or move for an extension, the Supreme Court issued an order dated June 7, 1999, dismissing the action. The plaintiffs thereafter moved to vacate that order. However, we find that the plaintiffs failed to demonstrate that they had a meritorious cause of action. An unsigned and redacted physician’s affidavit is insufficient to demonstrate the merits of a medical malpractice action (see, Gourdet v Hershfeld, 277 AD2d 422; Fuller v Tae Kwon, 259 AD2d 662; Marano v Mercy Hosp., 241 AD2d 48). There is no evidence that an unredacted affidavit was submitted for in camera inspection by the Supreme Court. Thus, the Supreme Court erred in vacating the prior order.

The plaintiffs’ remaining contentions concerning the validity of the 90-day notice are without merit (see, Safina v Queens-Long Is. Med. Group, supra; Balancio v American Opt. Corp., 66 NY2d 750). O’Brien, J. P., Sullivan and Schmidt, JJ., concur.