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Fontenelle v. Glens Falls Hospital
Citations: 105 A.D.2d 933; 481 N.Y.S.2d 900; 1984 N.Y. App. Div. LEXIS 21041
Court: Appellate Division of the Supreme Court of the State of New York; November 14, 1984; New York; State Appellate Court
An appeal was made against an order from the Supreme Court at Special Term that granted the plaintiff's motion to reargue but still ordered the striking of the plaintiff's note of issue and the dismissal of the complaint in a malpractice case initiated on January 30, 1981. The defendants had made demands under CPLR 3216 in April and May 1982, but a protective order from August 23, 1982, allowed both parties to complete discovery within 60 days of the order. Various discovery proceedings were delayed, with the last being a medical examination of the plaintiff on April 8, 1983. The plaintiff requested the examination report but did not receive it. On July 11, 1983, the plaintiff filed a note of issue and statement of readiness, followed by a motion to dismiss from defendant Thompson on July 18, 1983, which was granted on July 28, 1983, due to the plaintiff's noncompliance with the protective order and absence during the argument. The appellate court found that the complaint should not have been dismissed because there was a meritorious malpractice claim against defendant Thompson, and the plaintiff was not subject to dismissal under CPLR 3216 until discovery was complete. Since the defendants had not provided the required examination report, discovery remained incomplete. The plaintiff's filing of the note of issue before the motion to dismiss further supported that dismissal was inappropriate, as it prevented the court from considering prior delays. The court noted that the dismissal heavily relied on the defendants' arguments and the plaintiff's attorney’s absence, despite evidence that the plaintiff’s attorney was informed about the motion. Given the lack of prejudice to defendant Thompson and a strong showing of a viable cause of action, the appellate court modified the order by reinstating the plaintiff's note of issue and complaint. The order was affirmed as modified.