602 N.Y.S.2d 473 | N.Y. App. Div. | 1993
—Judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Plaintiff appeals from a judgment that dismissed her complaint for failure to file a note of issue and statement of readiness in response to defendants’ 90-day demand (see, CPLR 3216). In dismissing the action, the court implied that plaintiff’s delay in resuming prosecution was excusable, but held that plaintiff failed to make a meritorious showing of injury proximately resulting from defendants’ negligence. We conclude that plaintiff made an adequate showing of merit and that the complaint therefore was improperly dismissed (see, CPLR 3216 [e]).
The opposing papers, which include plaintiff’s verified complaint and EBT testimony as well as the unsworn letter of decedent’s treating physician, establish a case of negligence on the part of defendant pharmacist in switching the labels on two medications, an antibiotic and a painkiller, prescribed for treatment of decedent’s pneumonia and bronchitis. Further, plaintiff’s submissions competently establish injury and causation. The competent proof establishes that, as a result of defendant’s negligence, there was a three-week delay in decedent’s antibiotic treatment, which caused decedent to suffer from progressively worsening symptoms of coughing, fever, sweating and hallucinations. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J.—Dismiss Action.) Present—Denman, P. J., Callahan, Balio, Boomer and Boehm, JJ.