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HILDA G. DRENNON, Indi v. dually and as Executrix of JACK A. DRENNON, Deceased, Appellant,

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.

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DRENNON v. FARIS PHARMACY, INC
(Oct 1, 1993)