Martinisi v. Cornwall Hospital

In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Peter Patsalos, J.), dated November 17, 1988, which granted the motion of the defendant William P. Howley, M.D., to dismiss the complaint insofar as it is asserted against him due to failure to prosecute, (2) an order of the same court dated February 28, 1989, which denied her motion to renew the motion of the defendant William P. Howley, M.D., to dismiss, and (3) a judgment of the same court entered March 15, 1989, which, upon the granting of the motion of the defendant William P. Howley, M.D., to dismiss the complaint insofar as it is asserted against him, was in favor of the defendant William P. Howley, M.D., and against the plaintiff, and unconditionally severed and dismissed the complaint insofar as it is asserted against the defendant William P. Howley, M.D.

Ordered that the appeals from the orders are dismissed without costs or disbursements, and it is further,

Ordered that the judgment is modified, as a matter of discretion, by deleting the provision thereof which unconditionally severed and dismissed the complaint insofar as it is asserted against the defendant William P. Howley, M.D., and substituting therefor a provision severing and dismissing the complaint insofar as it is asserted against the defendant William P. Howley, M.D., unless, within 15 days of service upon the plaintiffs attorneys of a copy of this order, the plaintiffs attorneys pay to the defendant William P. Howley, M.D., the sum of $500; as so modified, the judgment is affirmed, without costs or disbursements.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

On May 10, 1988, the attorneys for the plaintiff received a so-called "90-day notice”, i.e., a written demand by the defendant William P. Howley, M.D., inter alia, to resume prosecution of the action and to serve and file a note of issue within 90 days after the receipt of the demand (see, CPLR 3216). In June of 1988, the plaintiff served a supplemental bill of particulars in which it was alleged that the plaintiff had suffered additional injuries as a consequence of the defendants’ alleged malpractice. In July of 1988, after the defendants rejected this supplemental bill of particulars, the plaintiff moved for leave to serve a supplemental bill of particulars, but failed to request as a part of this motion an extension of time to comply with thé 90-day notice. This motion was not denied until August 23, 1988, after the 90-day period had run.

Howley subsequently moved to dismiss the action on the basis of the plaintiffs failure to prosecute (see, CPLR 3216). In opposition, one of the plaintiffs attorneys stated, inter alia, that during the 90-day period she was preoccupied with her efforts to obtain leave of court for the service of a supplemental bill of particulars. A detailed affidavit of merit was also submitted. Annexed to the plaintiffs opposition papers was a note of issue and statement of readiness dated September 29, 1988.

In an order dated November 17, 1988, the Supreme Court held that since the plaintiff had failed to show an adequate excuse for her procedural default, it was necessary to grant Howley’s motion "with leave to plaintiff * * * to move to vacate the dismissal upon proper papers”.

In February of 1989, the plaintiff moved to vacate the dismissal. In support of the motion, the attorneys for the plaintiff explained the reasons for the default in greater detail. One of the plaintiffs attorneys asserted, inter alia, that she "had delayed filing the Statement of Readiness in expectation of a ruling on the Supplemental Bill of Particulars”. This attorney candidly acknowledged that her failure to comply with the 90-day notice in a timely manner was the result of inattention, and averred that this inattention was caused by the "stress and grief’ which she experienced following her mother’s death.

In an order dated February 28, 1989, the Supreme Court denied the plaintiffs motion. The plaintiff has now appealed from the judgment entered upon the basis of this order.

The Supreme Court’s dismissal of the plaintiffs action insofar as it is asserted against Howley was based exclusively on its determination that the plaintiffs attorneys had failed to offer a valid excuse for the delay of approximately seven weeks in complying with the 90-day notice. The Supreme Court properly noted that the plaintiff had submitted an adequate affidavit of merit.

Although the Supreme Court was correct in stating that the pendency of the plaintiffs motion for leave to serve a supplemental bill of particulars did not permit her to "ignore” the 90-day notice (see, e.g., Hurley v Dougherty, 56 AD2d 974 [pendency of pre-trial proceedings alone does not justify noncompliance]), the submission of this motion, which, if granted, would have necessitated further discovery and which negated any inference that the plaintiff intended to abandon her action, can be considered as one among several factors which, taken together, might warrant pardoning the plaintiff’s procedural default (see, e.g., Dick v Samaritan Hosp., 115 AD2d 917, 918-919 [incompleted discovery may justify non-compliance with 90 day notice]; see also, Rumrill v Epting, 88 AD2d 1047, 1048; Peterwanda, Inc. v Birnbaum, 79 AD2d 1103).

Considering this factor together with all the other circumstances of this case, including the possibility that the diligence of the plaintiff’s attorney might have been impaired as a result of the personal tragedy which she suffered, we believe, as a matter of discretion, that the extreme penalty of dismissal is not warranted. However, since the procedural lapse occasioned by the plaintiff’s attorneys’ understandable neglect should not be entirely condoned, we believe that the imposition of a monetary sanction is appropriate (see, e.g., Bermudez v Laminates Unlimited, 134 AD2d 314; Schaeffer v Nathan’s Famous, 40 AD2d 1041; Moran v Rynar, 39 AD2d 718). Bracken, J. P., Kunzeman and Lawrence, JJ., concur.