Dismissal on Behalf of Client Oncologist: The Little Things Make A Big Difference

by | Jan 21, 2021 | Case Results, Medical Malpractice | 0 comments

Senior Partner, Michael A. Sonkin, Partner Gregory J. Radomisli, and Associate Jacob H. Lisogorsky obtained a dismissal on behalf of our client doctor in Supreme Court, Kings County.  The matter involves boilerplate allegations that our client negligently failed to diagnose and treat the decedent, resulting in the development of Stevens-Johnson syndrome. Furthermore, plaintiff alleges that defendants negligently permitted the use of a contaminated chemotherapy port and other equipment, which contributed to the development of Stevens-Johnson syndrome. On September 3, 2016, the decedent succumbed to her untreatable Stage IV breast cancer after she stopped treatment and was admitted to hospice.

On July 8, 2019, plaintiff served a Summons with Notice and on July 30, 2019, MCB filed a Notice of Appearance and served a Demand for a Complaint. After plaintiff’s application for an extension of time to serve a Complaint was granted, plaintiff had until September 23, 2019 to serve a Complaint, but failed to do so and shortly thereafter we moved to dismiss this action pursuant to CPLR 3012(b).

Plaintiff opposed our motion, and cross-moved for relief and/or default judgment against our client and argued that the Notice could serve as a Complaint because it was relatively detailed and plaintiff claimed that even if the Court were to find that the Notice could not serve as a Complaint, he had an extension of time to respond to our Demand because of the Governor’s Executive Orders related to COVID-19.

The Court granted our motion, and dismissed this case and held that although plaintiff established a reasonable excuse for the delay in serving a Complaint, plaintiff did not submit an affidavit by a medical expert attesting to the potential merit of this action, and therefore failed to demonstrate that he was entitled to an extension of time to serve the Complaint. Co-defendant served an Answer to the Summons with Notice and is therefore still in the case.