Michael Vernon v. Nassau County Medical Center Et Al.

Michael Vernon v. Nassau County Medical Center Et Al.

In an action, inter alia, to recover damages for medical malpractice, defendants appeal from an order of the Supreme Court, Nassau County (Pantano, J.), dated July 6, 1983, which (1) granted plaintiffs motion to reargue defendants motion to dismiss the complaint for failure to prosecute which was granted in a prior order of the same court, dated May 20, 1983, and (2) upon reargument, vacated that order of May 20, 1983, and denied defendants motion to dismiss the complaint for failure to prosecute. para. Order dated July 6, 1983, modified, on the law, by deleting the provision which vacated the order dated May 20, 1983 and denied defendants motion to dismiss and substituting therefor a provision adhering to the original determination. As so modified, order affirmed, without costs or disbursements. para. In its decision and order dated July 6, 1983, which, inter alia, upon reargument, denied defendants motion to dismiss the complaint for failure to prosecute, Special Term was of the view, and correctly so, that plaintiffs failure to timely respond to a demand to serve and file a note of issue pursuant to CPLR 3216 was the result of law office failure and noted, again correctly, that CPLR 2005 (L 1983, ch 318), which had been enacted on June 21, 1983 (i.e., subsequent to the order of May 20, 1983 granting defendants motion to dismiss the complaint for failure to prosecute) restored discretion to the courts to excuse law office failure. In enacting CPLR 2005, the Legislature reinstated the pre- Barasch rule that the “determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court” (De Vito v Marine Midland Bank, 100 A.D.2d 530, 531). CPLR 2005 took effect on June 21, 1983 and applies to “every action * * * heretofore commenced and which * * * still is pending before a court” (L 1983, ch 318, § 3). The instant action was still pending before Special Term when it entertained the plaintiffs timely motion for reargument and, therefore, Special Term did not err in applying CPLR 2005 (Sanders & Assoc. v Hague Dev. Corp., 100 A.D.2d 964). para. However, in order to justify vacatur of a default based upon a failure to prosecute, plaintiff must demonstrate a meritorious cause of action by an affidavit of merit from one with personal knowledge of the facts (Sortino v Fisher, 20 A.D.2d 25, 31-32; Zaldua v Metropolitan Surburban Bus Auth., 97 A.D.2d 842; Steiner v East Ramapo Cent. School Dist., 88 A.D.2d 594). In this regard it was incumbent upon the plaintiff herein, who is alleging a cause of action based on medical malpractice, to submit an affidavit containing evidentiary facts by a person competent to attest to the meritorious nature of his claim, i.e., a physician (Sortino v Fisher, supra; Hatcher v City of New York, 99 A.D.2d 481; Berman v Brunswick Hosp. Center, 94 A.D.2d 736; Ferrigno v St. Charles Hosp., 86 A.D.2d 594; Sussman v Franklin Gen. Hosp., 77 A.D.2d 567). In the absence of such an affidavit, Special Term erred in denying defendants motion to dismiss the complaint for failure to prosecute.

Michael Vernon v. Nassau County Medical Center Et Al.



Here is Download Link

Reports Of Cases Decided In The Appellate Division Of The Supreme Court Of The State Of New York


Reports Of Cases Decided In The Appellate Division Of The Supreme Court Of The State Of New York Read Online Download

Author by :
Languange Used : en
Release Date : 1984
Publisher by :






United States Supreme Court Reports


United States Supreme Court Reports Read Online Download

Author by : United States. Supreme Court
Languange Used : en
Release Date : 1974
Publisher by :






American Hospital Association Guide To The Health Care Field


American Hospital Association Guide To The Health Care Field Read Online Download

Author by : American Hospital Association
Languange Used : en
Release Date : 1986
Publisher by :






Report


Report Read Online Download

Author by :
Languange Used : en
Release Date : 1986
Publisher by :






Who S Who In Special Libraries 1988 89


Who S Who In Special Libraries 1988 89 Read Online Download

Author by : Special Libraries Association
Languange Used : en
Release Date : 1988-12
Publisher by :






The New York State Directory 1997 98


The New York State Directory 1997 98 Read Online Download

Author by : E. T. Walsh
Languange Used : en
Release Date : 1997-06-01
Publisher by :






Business Law


Business Law Read Online Download

Author by : John Robert Allison
Languange Used : en
Release Date : 1992-01
Publisher by :






Leave a Reply

Your email address will not be published. Required fields are marked *