Bogardus v. Maron

Appeals from an order of Supreme Court, Wyoming County (Griffith, J.), entered August 7, 2002, which denied defendants’ motions to dismiss the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendant Wyoming County Community Hospital and dismissing the complaint against it and as modified the order is affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying the motion of defendant Barry Marón, M.D. to dismiss the complaint against him pursuant to CPLR 3216. Although plaintiff’s excuse for failing timely to file the note of issue in response to Maron’s 90-day demand was not strong, plaintiff established that she has a “good and meritorious cause of action” against Maron (3216 [e]; see Wood v Strong Mem. Hosp. of Univ. of Rochester, 262 AD2d 1054, 1055 [1999]; see also Schneider v Meltzer, 266 AD2d 801, 802 [1999]; Lichter v State of New York, 198 AD2d 687, 688 [1993]). Plaintiff, however, failed to establish that she has a meritorious cause of action against defendant Wyoming County Community Hospital (Hospital) (see McClure v County of Niagara, 216 AD2d 874 [1995]). We therefore modify the order by granting the motion of the Hospital and dismissing the complaint against it pursuant to CPLR 3216. Present — Green, J.P., Pine, Wisner and Hayes, JJ.