Solomon v. Perkins

Order unanimously reversed, without costs, and defendant’s motion granted. Memorandum: Defendant appeals from an order denying his motion to dismiss the action for failure to prosecute pursuant to CPLR 3012 (subd [b]) and granting plaintiff’s cross motion to compel defendant to accept service of the complaint. In December, 1973 plaintiff commenced this medical malpractice action by service of a summons and defendant timely responded with a notice of appearance and demand for a complaint. No further pleading was served until April, 1975 when defendant moved to dismiss. While plaintiff may have a meritorious cause of action we cannot agree that the 16-month period of delay is excusable. Special Term accepted plaintiff’s contentions that the time needed to obtain medical information, physicians’ reports, records of drug purchases, hospital records and a physician to testify on his behalf justified the delay. However, subsequent to the Special Term decision, we held in Rabetoy v Atkinson ( 49 AD2d 691 , app dsmd 37 NY2d 803 ) that the complexities and difficulties associated with the preparation and litigation of medical malpractice actions are insufficient reasons, standing alone, to excuse a substantial period of delay in serving a complaint. This applies absent unusual factors and a genuine showing of continuous activity in the preparation of the case (cf. Warner v Crouse-Irving Mem. Hosp., 52 AD2d 728 ). Plaintiff additionally contends that he complied with a request from defendant’s insurance carrier in authorizing