Opinion
May 1, 2001.
Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered November 17, 2000, which, in an action for medical malpractice, denied defendants' motions to dismiss the complaint for failure to prosecute, unanimously affirmed, without costs.
John E. Lawler, for Plaintiff-Respondent.
Mark Korn, Suzanne Rapisarda, for Defendants-Appellants.
Before: Sullivan, P.J., Mazzarelli, Ellerin, Buckley, JJ.
We are satisfied that plaintiff's failure to file a note of issue within 90 days of defendants' CPLR 3216 demand was largely attributable to defendants' refusal to comply with the notices to take their depositions and for production of documents that plaintiff served in response to the demand. Accordingly, the motion to dismiss was properly denied, even without a medical affidavit demonstrating the merits of the action (see, Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.