Opinion
October 5, 1976
In a wrongful death action, the appeals, as limited by appellants' briefs, are from so much of an order of the Supreme Court, Queens County, dated February 11, 1976, as, upon granting the separate motions of appellant Jamaica Hospital and of appellants Marzulli and Smith to dismiss the complaint for want of prosecution pursuant to CPLR 3216, did so conditionally. Order reversed insofar as appealed from, on the law, without costs or disbursements, and motions granted unconditionally. No fact findings were presented for review. It appears that there was a lapse of some 17 months between the last activity in this case and the service of the 45-day notices upon the plaintiff's attorney. In response thereto, the attorney moved for a protective order to stay the appellants from proceeding with their contemplated motions to dismiss and for discovery and inspection of certain hospital records. Although the complaint states that the infant was caused to suffer a cardiac arrest while undergoing a splenectomy, the record before this court is void of any qualitative evidence to demonstrate merit to the claim. In addition, no bill of particulars or depositions have been made part of this record, although they are in existence and could have aided the court in determining the merit of the causes of action asserted against the various defendants. The plaintiff failed to submit any reason for the delay in prosecuting this action and has not submitted any evidence to demonstrate the existence of a meritorious cause of action. We have held that an affidavit of merits is necessary to indicate whether a plaintiff has a viable cause of action, and that a mere recital of conclusory allegations in a complaint will not suffice (see Brender v Bermas, 37 A.D.2d 835; Callahan v International Term. Operating Co., 36 A.D.2d 531; Cahn v Raimonda, 42 A.D.2d 726). Cohalan, Acting P.J., Margett, Damiani, Shapiro and Titone, JJ., concur.