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 established merit to a degree sufficient to satisfy the requirements of CPLR 3216 (see, Argenti v Hospital for Special Surgery, 95 AD2d 747, 749; Bogoff v Mount Sinai Hosp., 85 AD2d 581; cf., Salch v Paratore, 60 NY2d 851, 852-853). The plaintiff’s papers, which are supported by medical facts contained in the hospital records, allege, inter alia, that after the plaintiff indicated a suspected pregnancy, the defendant failed to ascertain that she was pregnant. He then proceeded to negligently *713shorten the cord of the plaintiffs intrauterine device, making it impossible to remove the device manually after her pregnancy was established, and creating the likelihood of infection and injury to the fetus. Soon thereafter, the plaintiff prematurely went into labor and began to miscarry, necessitating the performance of an emergency dilation and curettage. As a result, the plaintiff delivered a macerated male fetus consisting of infected and inflamed fetal and placental material.
Although the plaintiff did not produce an affidavit from a medical expert, the danger to the developing fetus created by the continued presence of an IUD during pregnancy is apparent and accordingly, an expert medical opinion is not required (cf., Fiore v Galang, 64 NY2d 999, 1000-1001). We note further, that the default was not willful, contumacious, or with intent to abandon the action. Further, prejudice has neither been claimed nor is discernible from the record, and the delay which resulted was not protracted.