Phillips v. University of Rochester , 401 N.Y.S.2d 20 ( 1977 )

Order and judgment unanimously reversed, without costs, and motion denied. Memorandum: Plaintiffs Paul Phillips and his guardian S. Jack Phillips appeal from an order dismissing their complaint on the merits, a second order reaffirming the prior order, and a judgment dismissing the complaint. The complaint claimed that plaintiff Paul Phillips was injured, while a patient in defendant hospital, due to defendant’s negligence. The dismissal was on the ground that plaintiffs unreasonably neglected to proceed in the action by failing to file requested medical malpractice mediation panel papers with the clerk of the Supreme Court in compliance with section 148-a of the Judiciary Law. The record establishes that all pleadings were served in the action, and the bill of particulars, physical examinations, examinations before trial, and depositions were waived. After the initial request for the mediation papers by the clerk, neither the clerk nor defendant’s counsel communicated with plaintiffs’ attorney with respect to the matter until the notice of motion to dismiss was served. The dismissal should be reversed for the reasons stated in Rosenburgh v University of Rochester (Strong Mem. Hosp.) (60 AD2d 756). (Appeal from order and judgment of Monroe Supreme Court—dismiss complaint.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.