A state appeals court has reversed a Brooklyn Supreme Court dismissal of a medical malpractice suit against Mt. Sinai Hospital, ruling that the trial court “inappropriately relied upon the plaintiff’s general delay in prosecuting the action” and that dismissal was a “drastic remedy” that should only come from clear failure to comply with discovery demands.
The Appellate Division, Second Department court, in restoring the action lodged by plaintiff Eugene Cooper, a former Mt. Sinai patient, explained its reversal of the Brooklyn trial court by stating that “the courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue unless there has first been served a [90-day notice],” quoting Gatehouse v. New York City Housing Authority.
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