Horn v. Boyle, 260 AD2d 76 (3rd Dep't 1999) was an action wherein the plaintiff sued the defendant, an ophthalmologist, for alleged medical malpractice arising from the defendant's treatment of plaintiff's eye. The plaintiff in Boyle had counsel, unlike plaintiff in the present case. Plaintiff in Boyle did not file a Certificate of Merit, but instead executed an affirmation that claimed the complaint was being served without one to avoid the expiration of the Statute of Limitations on the action. 260 AD2d at 77. A Certificate of Merit was not filed in the following 90 days, as required by statute, and defendant died two years later, never having been deposed. Id. In addition, during the nearly three-year period between the filing and dismissal of the action, defendant made repeated requests for plaintiff to file the Certificate of Merit. In Horn, the defendant repeatedly sought a Certificate of Merit from plaintiff's counsel. In Horn, the action was dismissed when the plaintiff failed to demonstrate good cause for an extension of time to file a Certificate of Merit almost three years after it should have been filed, and also because allowing an extension to file would result in prejudice to the defendant, who died never having been deposed. 260 AD2d at 78. In addition, the medical opinion that was finally obtained was deemed insufficient to demonstrate a meritorious claim. Id. It appears in Horn that the dismissal was ultimately granted because the action had no merit.