Mosberg v. Elahi

Kooper, J.,

dissents and votes to affirm, with the following memorandum in which Miller, J., concurs. In light of the the demonstrable merit of the plaintiff’s cause of action and the conceded absence of any prejudice to the defendant, the Supreme Court properly exercised its discretion in declining to impose the drastic sanction of dismissal as a consequence of the plaintiff’s brief delay in responding to the defendant’s 90-day notice (see, Conner v Brasserie, Inc., 136 AD2d 481). Contrary to the defendant’s contentions, the hospital records and other documents produced by the plaintiff…