Hommell v. Albany Medical Center Hospital, Inc.

Casey, J. Appeal from an order of the Supreme Court (Harris, J.), entered January 11, 1994 in Albany County, which denied a motion by defendant Saratoga Hospital, Inc. to dismiss for failure to serve a complaint. After this medical malpractice action was commenced against defendant Saratoga Hospital, Inc. (hereinafter defendant), defendant served a notice of appearance and demand for a complaint on October 18, 1993. On November 12, 1993, plaintiffs’ counsel made a written request for an extension of time to file a complaint. Defendant did not respond to this request but instead, on December 6, 1993, moved to dismiss pursuant to CPLR 3012 (b). In response, plaintiffs did not provide an affidavit of merit or a verified complaint, but did move for an extension of time (see, CPLR 2004) on December 15, 1993. Supreme Court denied defendant’s motion and granted plaintiffs’ motion. We conclude that plaintiffs’ delay here was sufficiently long to require an affidavit of merit (cf., Lehigh Val. R. R. Co. v North Am. Van Lines, 25 AD2d 923), and in the absence of the required affidavit of merit, defendant’s motion should have been granted (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Cardona, P. J., Mikoll, Mercure and White, JJ., concur. Ordered that the order is reversed, on the law, with costs, cross motion denied, motion granted and action dismissed against defendant Saratoga Hospital, Inc.