Summary
denying defendants' motion to dismiss because defendants did not provide medical records, citing Santagelo but making no mention of Tewari or lack of power to dismiss
Summary of this case from DEFELICE v. NEW YORK EYE EAR INFIRMARYOpinion
May 29, 1990
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
In this medical malpractice action, plaintiff, as administratrix of her sister's estate, failed to serve a complaint with an accompanying certificate of merit (CPLR 3012-a) within the 20-day statutory time period following defendant's demand therefor. (CPLR 3012 [b].)
Accordingly, defendants hospitals moved to dismiss the action for failure to serve a timely complaint and accompanying certificate of merit. In response to the motion, plaintiff asserted that the defendants failed to respond to her written requests for the deceased's medical records resulting in the delay and failure complained of by defendants. Defendant, Montefiore, heretofore denied receipt of the letters requesting the medical records. The IAS court denied the defendants' cross motions to dismiss the action and directed the hospitals to provide plaintiff with the deceased's medical records. We see no reason to disturb the court's exercise of discretion.
Without the medical records, the drafting of the complaint and the certificate of merit would have been impossible. The dispute as to whether the demand for the records was received by the hospitals was properly treated by the court as not dispositive since the law is clear that resolution of lawsuits on the merits is favored, especially where, as here, there is no showing of prejudice to defendants.
Concur — Kupferman, J.P., Sullivan, Rosenberger, Ellerin and Smith, JJ.