Webber v. Patel

232 A.D.2d 549, 648 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 10441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1996
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the defendant Shama Rasool appeals from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated November 3,1995, as denied his cross motion to dismiss the action insofar as asserted against him.

Ordered that the order is reversed insofar as appealed from, with costs, the defendant Shama Rasool’s cross motion is granted, and the complaint is dismissed insofar as asserted against him.

Although the plaintiffs offered a reasonable excuse for the two-month delay in serving the medical malpractice complaint upon the defendant Shama Rasool, their medical expert’s affidavit of merit was entirely conclusory, indicating only that the expert had reviewed the medical file and determined that a valid cause of action existed against the defendants. As the plaintiffs failed to demonstrate the existence of a meritorious cause of action, it was an improvident exercise of discretion for the court to deny Rasool’s cross motion to dismiss the action insofar as asserted against him pursuant to CPLR 3012 (b) (see, Snyder v Blinder, 230 AD2d 728; Gibson v Victory Mem. Hosp., 221 AD2d 503). Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.