BERGEY v. FLYNN

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Supreme Court, Appellate Division, Fourth Department, New York.

Barbara A. BERGEY and Michael J. Bergey, Plaintiffs-Respondents, v. William J. FLYNN, Jr., M.D., Defendant-Appellant, et al., Defendants.

Decided: September 28, 2001

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE and GORSKI, JJ. Brian A. Birenbach, for defendant-appellant. David C. Laub, for plaintiffs-respondents.

Supreme Court erred in denying the motion of William J. Flynn, Jr., M.D. (defendant) seeking dismissal of the action against him based on plaintiffs' failure to comply with his demand for the complaint (see, CPLR 3012 [b] ).   Plaintiffs commenced this action by filing a summons with notice on November 4, 1999, and defendant appeared by filing a demand for the complaint on December 1, 1999.   In opposition to defendant's motion, plaintiffs submitted the affidavit of plaintiff Michael J. Bergey stating that his wife, Barbara A. Bergey (plaintiff), was involved in a single-car accident on May 6, 1997, and as a result sustained injuries that included a broken neck and internal injuries.   After plaintiff's accident, defendant performed an exploratory laparotomy surgery and thereafter informed plaintiff husband that he had accidently cut a portion of plaintiff's small intestine, but that the area had been re-sectioned and repaired.   The affidavit further stated that plaintiff had been hospitalized since February 2000 and had undergone nine surgeries, “the majority of which [were] related to the spinal cord injury”.   Plaintiffs also submitted the affidavit of their attorney, who stated that plaintiff had been hospitalized since February 2000 and that he had been unable to communicate with plaintiff since that time because of her physical condition.   Neither affidavit demonstrates a meritorious cause of action nor a reasonable excuse for the failure to serve the complaint in December 1999 after service of defendant's demand (see, Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275;  Meiselman v. Central Suffolk Hosp., 273 A.D.2d 209, 210, 709 N.Y.S.2d 436, appeal dismissed and lv. denied 95 N.Y.2d 874, 714 N.Y.S.2d 707, 737 N.E.2d 950).   We therefore grant the motion and dismiss the action against defendant.

Order unanimously reversed on the law without costs, motion granted and action against defendant William J. Flynn, Jr., M.D. dismissed.

MEMORANDUM: