Scarborough v. Zimmon

Order reversed, without costs, and complaint dismissed. Memorandum: Defendant doctors David Zimmon and William Panke appeal from an order compelling them to accept plaintiffs’ late complaint. Although defendants failed to move for dismissal of the action against them pursuant to CPLR 3012 (subd [b]), we believe dismissal is warranted because plaintiffs failed to timely comply with defendants’ demand for a complaint and also failed to demonstrate merit and a reasonable excuse for the three-month delay (cf. A & J Concrete Corp. v Arker, 54 NY2d 870). Plaintiffs’ inability to obtain the services of a medical expert is tantamount to law office failure and, as such, is an unacceptable excuse for delay (Scarborough v Zimmon, 85 AD2d 892, affd 56 NY2d 784). Furthermore, plaintiffs’ affidavit which recounts the experience of Lucille Scarborough coupled with a letter from the attending physician describing the procedure followed does not establish the merit of this medical malpractice action (Scarborough v Zimmon, supra). All concur, except Callahan, J., who dissents and votes to affirm, in the following memorandum.