Raccasi v. Kaye

81 A.D.2d 661, 438 N.Y.S.2d 366, 1981 N.Y. App. Div. LEXIS 11184

Opinion

— In a dental malpractice action, defendant appeals from an order of the Supreme Court, Westchester County, dated July 3, 1980, which denied his motion to dismiss the action for want of prosecution. Order reversed, on the law, without costs or disbursements, motion granted, and complaint dismissed, without prejudice to an application at Special Term, upon proper papers, to vacate the order of dismissal, if the plaintiffs be so advised. Plaintiffs’ time to move is extended until 30 days after service upon them of a copy of the order to be made hereon, with notice of entry. Misunderstandings between counsel concerning extensions of the time to file a note of issue and the intention of completing pretrial discovery prior thereto, may have served as a justifiable excuse for filing said note of issue approximately one month after the expiration of the statutory 90-day period. Nevertheless, plaintiffs’ failure to present Special Term with a sufficient affidavit of merits in opposition to the motion to dismiss the complaint was fatal. Absent such an affidavit, the motion should have been granted. (See Keating v Smith, 20 AD2d 141.) Hopkins, J.P., Mangano, Rabin and Weinstein, JJ., concur.