Schiraldi v. Brooklyn Cumberland Hospital

70 A.D.2d 911, 417 N.Y.S.2d 297, 1979 N.Y. App. Div. LEXIS 12497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1979
• Status: Published

Opinion

— In a medical malpractice action, plaintiffs appeal (1) from an order of the Supreme Court, Kings County, dated June 16, 1978, which, inter alia, granted the motion of defendant New York City Health and Hospitals Corporation to dismiss the action for failure to timely serve a complaint and (2) as limited by their brief, from so much of a further order of the same court, entered January 2, 1979, as, upon reargument, adhered to its original determination. Appeal from order dated June 16, 1978 dismissed as academic. The order was superseded by the order entered January 2, 1979 on reargument. Order entered January 2, 1979 affirmed insofar as appealed from. The respondent is awarded one bill of $50 costs and disbursements. The reasons proffered for the two-year delay in the service of the complaint did not constitute excusable delay under the circumstances. Additionally, the affidavit of merit tendered by plaintiffs was insufficient to establish a meritorious claim. The affidavit of merit required to defeat a motion to dismiss must contain evidentiary facts establishing that plaintiff has a viable cause of action (Sortino v Fisher, 20 AD2d 25). Mollen, P. J., Damiani, O’Connor and Rabin, JJ., concur.