Opinion
September 20, 1990
Appeal from the Supreme Court, Madison County (Tait, Jr., J.).
Supreme Court properly denied the motion to dismiss the action due to plaintiffs' failure to timely serve the complaint. Plaintiffs have offered both a satisfactory excuse for the delay and an adequate affidavit of merit (cf., Dattoria v. Dattoria, 161 A.D.2d 1009). An affidavit by the physician for plaintiffs' counsel detailed the health problems which had caused the delay by counsel in serving the complaint. Therefore, since the initial delay of 13 days in serving the complaint was slight, the default unintentional and no prejudice shown, the excuse offered was sufficient (see, Bayer v. Domino Media, 147 A.D.2d 413). Additionally, the affidavit of merit by plaintiffs' medical expert sufficiently alleged that defendants' actions departed from accepted medical standards and that such departure was a proximate cause of the injuries alleged in plaintiffs' complaint (cf., Daponte v. Weber, 134 A.D.2d 319, lv denied 71 N.Y.2d 801). As to the remaining contentions raised on this appeal, they have been examined and found to be lacking in merit.
Order affirmed, with costs. Mahoney, P.J., Kane, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.