Tierney v. OB-GYN Associates of Ithaca

Yesawich Jr., J. (dissenting).

I respectfully dissent.

While plaintiffs have not actively prosecuted this case, it is equally clear that defendants’ conduct affirmatively added to the delay in prosecution. Because defendants’ contribution to the delay consisted of more than simply inaction, their motion to dismiss for failure to prosecute should not have been granted (see, Schoenhals v Kissing Bridge Corp., 96 AD2d 711; Brown v Weissberg, 22 AD2d 282, 284).

*928This is a medical malpractice claim, the thrust of which is that plaintiff Sharon Tierney was allegedly negligently cared for during her…