Spiegel v. Booth Memorial Hospital

Appellate Division of the Supreme Court of New York

Spiegel v. Booth Memorial Hospital

48 A.D.2d 886, 369 N.Y.S.2d 205, 1975 N.Y. App. Div. LEXIS 10143

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 1975

StatusPublished

Cited by1 cases

This text of 48 A.D.2d 886 (Spiegel v. Booth Memorial Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spiegel v. Booth Memorial Hospital, 48 A.D.2d 886, 369 N.Y.S.2d 205, 1975 N.Y. App. Div. LEXIS 10143 (N.Y. Ct. App. 1975).

Pincite

Opinion

In a medical malpractice action, defendant James Glasser appeals from an order of the Supreme Court, [887]*887Queens County, dated January 8, 1975, which denied his motion to dismiss the action for failure to serve a complaint and granted leave to plaintiffs to serve their complaint within a specified period. Order reversed, on the law, with $20 costs and disbursements, and motion granted without prejudice to a motion by plaintiffs to vacate their default upon proper papers demonstrating the merits of their actions. The complaint in this action was served on August 27, 1974 with the affidavit in opposition to the motion to dismiss, which motion was originally returnable on June 21, 1974. The complaint had been demanded on November 7, 1973. In the absence of a satisfactory explanation for the delay and an adequate affidavit of merits, Special Term should have granted the motion to dismiss (O’Halloran v Eller, 43 AD2d 955; Melfi v Nash, 40 AD2d 1017; Schwartz v National Fire Ins. Co. of Hartford, 25 AD2d 727). Under the circumstances of this case, in which one of the plaintiffs claims grievous injury requiring three separate hospitalizations, plaintiffs should be permitted to move to open their default upon proper papers. Rabin, Acting P. J., Hopkins, Martuscello, Brennan and Shapiro, JJ., concur.

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In a medical malpractice action, defendant James Glasser appeals from an order of the Supreme Court, [887]*887Queens County, dated January 8, 1975, which denied his motion to dismiss the action for failure to serve a complaint and granted leave to plaintiffs to serve their complaint within a specified period. Order reversed, on the law, with $20 costs and disbursements, and motion granted without prejudice to a motion by plaintiffs to vacate their default upon proper papers demonstrating the merits of their actions. The complaint in this action was served on August 27, 1974 with the affidavit in opposition to the motion to dismiss, which motion was originally returnable on June 21, 1974. The complaint had been demanded on November 7, 1973. In the absence of a satisfactory explanation for the delay and an adequate affidavit of merits, Special Term should have granted the motion to dismiss (O’Halloran v Eller, 43 AD2d 955; Melfi v Nash, 40 AD2d 1017; Schwartz v National Fire Ins. Co. of Hartford, 25 AD2d 727). Under the circumstances of this case, in which one of the plaintiffs claims grievous injury requiring three separate hospitalizations, plaintiffs should be permitted to move to open their default upon proper papers. Rabin, Acting P. J., Hopkins, Martuscello, Brennan and Shapiro, JJ., concur.

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Bluebook (online)

48 A.D.2d 886, 369 N.Y.S.2d 205, 1975 N.Y. App. Div. LEXIS 10143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spiegel-v-booth-memorial-hospital-nyappdiv-1975.

Opinion

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