In Rose v. Our Lady of Mercy Med. Ctr. (268 AD2d 225, 700 N.Y.S.2d 467 [1st Dept 2000]), the defendants sought dismissal of a medical malpractice action on the ground that the plaintiffs failed to serve a timely complaint.
The plaintiffs served the defendants in January and February 1998 with a summons with notice, because the statute of limitations might have expired before they could obtain all the expert review necessary to serve a detailed complaint.
In late January and February, the defendants served the plaintiffs with demands for a complaint.
On March 25 and April 15, 1998, the various defendants made motions to dismiss the action, because the plaintiffs had not served a complaint within 20 days after the summons. "On April 9, 1998, a sparse but adequately verified complaint was served" (id. at 225).
The Appellate Division found that the plaintiffs "needed additional time to obtain a medical expert's review of extensive hospital records so that they could proffer an informed physician's affidavit of merit," which provided "sufficient evidence of a meritorious claim." The affidavit described in detail a series of medical operations performed at the defendant hospital (id. at 226).
The Court held that, because plaintiffs had not "evinced any intent to abandon their claim or otherwise prejudiced defendant, it was not an abuse of discretion" for the trial court to refuse to dismiss the complaint on timeliness grounds (id.).