Edward Obrien v. Methodist Hospital Brooklyn Et Al‪.‬

In a medical malpractice action, defendant Frank N. Marzullo appeals from an order of the Supreme Court Kings County, dated March 16, 1979, which denied his cross motion to dismiss the action, pursuant to CPLR 3216, for plaintiffs failure to prosecute the same. Order affirmed, with $50 costs and disbursements. This action was commenced on August 12, 1971, issue was joined by defendant-appellant on November 24, 1971, and the plaintiffs bill of particulars was executed in February, 1974. The appellant served a 45-day notice on May 9, 1975, and the co-defendant Methodist Hospital served a 45-day notice on June 3, 1975. Thereafter, both of these defendants moved to dismiss for failure to prosecute by motion returnable September 4, 1975. By order dated October 22, 1975, Special Term, denied the defendants motion. The order provided: "Upon the foregoing papers this motion by each of two defendants to dismiss for lack of prosecution is denied with $20.00 costs to be paid by each moving defendant. Plaintiffs law firm has been dissolved by death and the firms dissolution is being litigated. Defendants are stayed from proceeding until new attorneys appearing for plaintiff are properly substituted." No appeal was taken from said order. Thereafter, a second 45-day notice was served on August 4, 1976 by co-defendant Methodist Hospital. A motion was subsequently made by that co-defendant to dismiss the complaint for failure to prosecute, and the appellant, by cross motion returnable November 3, [73 A.D.2d 687 Page 6881978]