Taveras v. Mount Sinai Hospital

41 A.D.2d 640, 341 N.Y.S.2d 120, 1973 N.Y. App. Div. LEXIS 5029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1973
• Status: Published

Opinion

'Order, Supreme Court, New York County, entered June 29, 1972; denying motion tó dismiss complaint for unreasonable neglect tó proceed (CPLR .'3216) vacated, in the exercise of discretion'and in the interests of justice mad the matter remanded to - Special Term for reconsideration ■ upon the submission by plaintiff of an affidavit of merits'-embracing the medical- contentions set forth, belatedly in the brief before .this court. This relief is extended in view' of the seriousness of the matter and the totality of the circumstances,, in the exercise of discretion' and in the interests of justice.;-. This, disposition, is-made -on condition that the attorney for the plaintiff pay to' defendants-appellants-■ respondents,'the sum of $250 costs, together with $40 costs.and disbursements óf this appeal,, within 30 days after, publication of the. order herein. .(Prieto v..Greenberg, 38 A D 2d'907.) Upon such payment, the plaintiff’s motion to vacate default and to. restore defendant,- Mount- Sinai Hospital’s' motion to Speciál Term, Part I, for consideration on the .merits,, is granted. Upon failure of plaintiff to. mak'e'the payment, so-provided,-the'order appealed from will be reversed, óñ the law and .the facts, , and the motion to dismiss granted and. defendants-appellants-respondénts .shall recover- of plaintiff-respondent-appellant $40 costs and disbursements of this-appeal. In this'malpractice action, involving the death of. á mother and most' serious injury tó hey new-born child, ■we arc persuaded by the medical evidence, by -form of letters, embodied, in plaintiff^ brief on appeal, that in. the proper exercise of discretion, appellate inter- . vention is warranted in order to salvage the complaint from a dismissal, even though the plaintiff has been remiss in submitting a proper affidavit of merits. - (Maestros v. Huniingto.n Station Food Shop, 39 A D 2d' 582.) In. so domg,' ■ we take note of the- observation of thé court below “ that plaintiffs have been - vigorously prosecuting their action”. It is, thus, only the -absence of -an-ode-. qúate affidavit of merits which, precludes an affirmance of the. denial of the' . motion to dismiss, arid compels a remand' to ■ ¡rectify such ' defect ¡ under the extraordinary circumstances ' here, prevailing. Concur - — -MeGivern, J. P.) Markewich, Nunez, Murphy and Tilzer, JJ.;.