Opinion
CA 03-00588
October 2, 2003.
Appeals from an order of Supreme Court, Wyoming County (Griffith, J.), entered August 7, 2002, which denied defendants' motions to dismiss the complaint.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (SALLY J. BROAD OF COUNSEL), FOR DEFENDANT-APPELLANT BARRY MARON, M.D.
DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANT-APPELLANT WYOMING COUNTY COMMUNITY HOSPITAL.
CELLINO BARNES, P.C., BUFFALO (DAVID M. GOODMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, WISNER, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 Maron, 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 A.D.2d 1054, 1055; see also Schneider v. Meltzer, 266 A.D.2d 801, 802; Lichter v. State of New York, 198 A.D.2d 687, 688). 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 A.D.2d 874). We therefore modify the order by granting the motion of the Hospital and dismissing the complaint against it pursuant to CPLR 3216.