Berzinski v. Ness

Appeal from an order of the Supreme Court at Special Term (Bryant, J.), entered July 8, 1981 in Broome County, which denied defendant Our Lady of Lourdes Memorial Hospital’s motion, pursuant to CPLR 3216 to dismiss the complaint, as against it, for failure to prosecute. The underlying action, brought to recover money damages from the defendant hospital and the codefendant doctors, has its origin in medical malpractice which allegedly occurred in August, 1964, when the infant plaintiff was born. Suit was commenced on May 10,1979, and issue was joined within two weeks thereafter. In September, 1979 a bill of particulars was served and shortly thereafter examinations before trial of the plaintiffs were conducted. Notice to serve and file a note of issue, pursuant to CPLR 3216, was served by the hospital on January 15, 1981, and when none was forthcoming it moved to dismiss for want of prosecution. Originally returnable on June 2,1981, the motion was unilaterally adjourned by plaintiffs’ counsel to June 23, at which time it was argued and thereafter denied. This appeal ensued. To avoid dismissal, plaintiffs were required to demonstrate a meritorious cause of action and a justifiable excuse. Whether an adequate excuse exists need not be confronted, for the required showing, in evidentiary form, that the action against the hospital has any merit is lacking (see Catón v Schenectady Gazette, 82 AD2d 949). Plaintiffs’ affidavit of merit, executed by counsel, is less than sufficient for it merely asserts that counsel has received an opinion from an unnamed physician that there is “a meritorious claim against all the defendants” (Finch v Beagell, 71 AD2d 698). Order reversed, on the law and the facts, without costs, and motion to dismiss complaint granted. Main, J. P., Casey, Yesawich, Jr., Weiss and Levine, JJ., concur.