Gilligan v. Miller

In an action to recover damages for medical malpractice, plaintiff appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated December 13,1982, which granted defendant’s motion pursuant to CPLR 3216 to dismiss plaintiff’s action for failure to prosecute, and denied plaintiff’s cross motion to compel discovery. Order affirmed, without costs or disbursements. The record contains no affidavit from a physician, no hospital records and no other evidence to establish that there is merit to plaintiff’s claim that defendant doctor was negligent and committed malpractice. Thus the action was properly dismissed (Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Hatcher v City of New York, 99 AD2d 481; Savino v Guido, 81 AD2d 860). Moreover, on the record as a whole, we find that plaintiff’s excuses for failure to comply with defendant’s 90-day notice pursuant to CPLR 3216 are insufficient or without merit. Lazer, J. P., Thompson, Bracken and Rubin, JJ., concur.