Odess v. Medical Center, Teamster Local 1034

67 A.D.2d 941, 413 N.Y.S.2d 205, 1979 N.Y. App. Div. LEXIS 10713

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1979
• Status: Published

Opinions

— In a medical malpractice action, the individual defendants appeal from an order of the Supreme Court, Kings County, dated March 10, 1978, which (1) denied their motion to dismiss the action for failure to serve a complaint (see CPLR 3012, subd [b]), and (2) granted plaintiff’s cross motion for leave to serve a complaint. Order reversed, on the law, without costs or disbursements, motion granted, and cross motion denied. In our opinion, the extended illness and depression of plaintiff’s attorney caused by the death of his wife some years before, was insufficient reason to justify the more than 30-month delay in complying with appellants’ demand for service of a complaint. Accordingly, the denial of appellants’ motion to dismiss the action pursuant to CPLR 3012 (subd [b]) constituted an abuse of discretion (see Berland v Fine, 63 AD2d 642, in which the plaintiff was represented by the same attorney as represents the plaintiff herein). Damiani, J. P., Titone and Shapiro, JJ., concur.