Watson v. Jamaica Hospital

Appellate Division of the Supreme Court of New York

Watson v. Jamaica Hospital

54 A.D.2d 695, 387 N.Y.S.2d 289, 1976 N.Y. App. Div. LEXIS 14259

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

DecidedOctober 5, 1976

StatusPublished

This text of 54 A.D.2d 695 (Watson v. Jamaica 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

Watson v. Jamaica Hospital, 54 A.D.2d 695, 387 N.Y.S.2d 289, 1976 N.Y. App. Div. LEXIS 14259 (N.Y. Ct. App. 1976).

Pincite

Opinion

In a wrongful death action, the appeals, as limited by appellants’ briefs, are from so much of an order of the Supreme Court, [696]*696Queens County, dated February 11, 1976, as, upon granting the separate motions of appellant Jamaica Hospital and of appellants Marzulli and Smith to dismiss the complaint for want of prosecution pursuant to CPLR 3216, did so conditionally. Order reversed insofar as appealed from, on the law, without costs or disbursements, and motions granted unconditionally. No fact findings were presented for review. It appears that there was a lapse of some 17 months between the last activity in this case and the service of the 45-day notices upon the plaintiff’s attorney. In response thereto, the attorney moved for a protective order to stay the appellants from proceeding with their contemplated motions to dismiss and for discovery and inspection of certain hospital records. Although the complaint states that the infant was caused to suffer a cardiac arrest while undergoing a splenectomy, the record before this court is void of any qualitative evidence to demonstrate merit to the claim. In addition, no bill of particulars or depositions have been made part of this record, although they are in existence and could have aided the court in determining the merit of the causes of action asserted against the various defendants. The plaintiff failed to submit any reason for the delay in prosecuting this action and has not submitted any evidence to demonstrate the existence of a meritorious cause of action. We have held that an affidavit of merits is necessary to indicate whether a plaintiff has a viable cause of action, and that a mere recital of conclusory allegations in a complaint will not suffice (see Brender v Bermas, 37 AD2d 835; Callahan v International Term. Operating Co., 36 AD2d 531; Cahn v Raimonda, 42 AD2d 726). Cohalan, Acting P. J., Margett, Damiani, Shapiro and Titone, JJ., concur.

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In a wrongful death action, the appeals, as limited by appellants’ briefs, are from so much of an order of the Supreme Court, [696]*696Queens County, dated February 11, 1976, as, upon granting the separate motions of appellant Jamaica Hospital and of appellants Marzulli and Smith to dismiss the complaint for want of prosecution pursuant to CPLR 3216, did so conditionally. Order reversed insofar as appealed from, on the law, without costs or disbursements, and motions granted unconditionally. No fact findings were presented for review. It appears that there was a lapse of some 17 months between the last activity in this case and the service of the 45-day notices upon the plaintiff’s attorney. In response thereto, the attorney moved for a protective order to stay the appellants from proceeding with their contemplated motions to dismiss and for discovery and inspection of certain hospital records. Although the complaint states that the infant was caused to suffer a cardiac arrest while undergoing a splenectomy, the record before this court is void of any qualitative evidence to demonstrate merit to the claim. In addition, no bill of particulars or depositions have been made part of this record, although they are in existence and could have aided the court in determining the merit of the causes of action asserted against the various defendants. The plaintiff failed to submit any reason for the delay in prosecuting this action and has not submitted any evidence to demonstrate the existence of a meritorious cause of action. We have held that an affidavit of merits is necessary to indicate whether a plaintiff has a viable cause of action, and that a mere recital of conclusory allegations in a complaint will not suffice (see Brender v Bermas, 37 AD2d 835; Callahan v International Term. Operating Co., 36 AD2d 531; Cahn v Raimonda, 42 AD2d 726). Cohalan, Acting P. J., Margett, Damiani, Shapiro and Titone, JJ., concur.

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Bluebook (online)

54 A.D.2d 695, 387 N.Y.S.2d 289, 1976 N.Y. App. Div. LEXIS 14259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-jamaica-hospital-nyappdiv-1976.

Opinion

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