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Stolowitz v. Mount Sinai Hospital

455 N.E.2d 1255, 60 N.Y.2d 685, 468 N.Y.S.2d 460, 1983 N.Y. LEXIS 3389
CourtNew York Court of Appeals
DecidedSeptember 29, 1983
StatusPublished
Cited by48 cases

This text of 455 N.E.2d 1255 (Stolowitz v. Mount Sinai Hospital) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stolowitz v. Mount Sinai Hospital, 455 N.E.2d 1255, 60 N.Y.2d 685, 468 N.Y.S.2d 460, 1983 N.Y. LEXIS 3389 (N.Y. 1983).

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, and the motion to dismiss the complaint granted unconditionally.

On this motion by defendant to dismiss the action for the failure of plaintiff for a period of nine months to serve a complaint, plaintiff concedes, as he must, that no affidavit of merits was submitted. Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. (Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599; Sortino v Fisher, 20 AD2d 25, 31-32.)

In view of this disposition we have no occasion to address the contentions of the parties as to the reasonableness of the proffered excuse for the delay in serving the complaint.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer taking no part.

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.

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Bluebook (online)
455 N.E.2d 1255, 60 N.Y.2d 685, 468 N.Y.S.2d 460, 1983 N.Y. LEXIS 3389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stolowitz-v-mount-sinai-hospital-ny-1983.