Scarborough v. Zimmon

85 A.D.2d 892, 446 N.Y.S.2d 751, 1981 N.Y. App. Div. LEXIS 16731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1981
• Status: Published

Opinion

Order reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant, St. Vincent’s Hospital and Medical Center, appeals from an order which denied its motion to dismiss plaintiffs’ action against it for failure to serve a complaint on time (see CPLR 3012) and which granted plaintiffs’ cross motions compelling it to accept the complaint served more than three months after defendant’s demand. The order is reversed, plaintiffs’ motion is denied, defendant’s motion granted, and the complaint against the defendant hospital is dismissed. Accepting as true plaintiffs’ allegation that they were unable to obtain the services of a medical expert, their failure to serve a complaint was the result of “law office failure” nevertheless, and, as such, it is an unacceptable excuse for delay. (Nelson v Eastman Dental Center, 85 AD2d 887.) Moreover, plaintiffs moving papers contain only the affidavit of one of the plaintiffs, summarizing her experience with an annexed letter from the attending physician, one of the defendants herein, which described the procedure followed, and these do not establish merit to the case (see Rothstein v Grayson, 78 AD2d 677; O’Halloran v Eller, 43 AD2d 955). Special Term abused its discretion, therefore, in denying defendant’s motion and compelling it to accept the late complaint (see Barasch v Micucci, 49 NY2d 594). All concur, except Callahan, J., who dissents and votes to affirm the order. (Appeal from order of Monroe Supreme Court, Rosenbloom, J. — dismiss action for failure to serve complaint.) Present — Simons, J. P., Callahan, Denman, Moule and Schnepp, JJ.