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eBook details

• Title: John Corrado v. Wallace C. Bendell
• Author : Supreme Court of New York
• Release Date : January 25, 1983
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Dutchess County (Rosenblatt, J.), dated July 15, 1982, which granted the defendants motion for an order pursuant to CPLR 3012 (subd [b]) dismissing the action for failure to serve a complaint. The appeal brings up for review so much of a further order of the same court, entered August 27, 1982, as, upon reargument, adhered to its original determination. Appeal from the order dated July 15, 1982, dismissed, without costs or disbursements. That order was superseded by the order granting reargument. Order entered August 27, 1982, affirmed, insofar as reviewed, without costs or disbursements. On or about March 30, 1982 plaintiff, John Corrado, commenced this medical malpractice action against the defendant by personal service of a summons. Subsequently, on April 19, 1982, the defendant served a notice of appearance and demand for a complaint upon the plaintiff, and by notice of motion dated May 24, 1982 (i.e., 35 days later), the defendant moved for an order dismissing the action due to the plaintiffs failure to serve a complaint within the 20-day period specified in CPLR 3012 (subd [b]). At this juncture, the plaintiff cross-moved, in effect, for an extension of time within which to serve a complaint (CPLR 2004). On July 15, 1982 the Supreme Court, Dutchess County, granted the defendants motion to dismiss the action and, upon reargument, adhered to its original determination. We affirm. Plaintiffs failure to serve a complaint within the time limited by statute (CPLR 3012, subd [b]) cannot be excused by counsels conclusory allegation to the effect that "[when] [he] was retained in the case it was close to being barred by the Statute of Limitations", and that he needed more time to secure an experts opinion prior to drafting a complaint. The inability to obtain the services of a medical expert and to overcome, in a timely manner, the other complexities and difficulties inherent in malpractice litigation have generally been held to constitute "law office failures", and are not legally sufficient to [93 A.D.2d 876 Page 877]

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