CITY OF NEW YORK v. HEALY/YONKERS/ATLASGEST

Full title: CITY OF NEW YORK, Appellant, v. HEALY/YONKERS/ATLASGEST, a Joint Venture…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 16, 1998

249 A.D.2d 102 (N.Y. App. Div. 1998)

670 N.Y.S.2d 105

Opinion

April 16, 1998

Appeal from the Supreme Court, New York County (Harold Tompkins, J.),

The motion to extend plaintiff's time to respond to the notice to admit was improvidently denied. The delay, due to oversight, in responding to the notice at the time plaintiff's counsel sought defendant Davidson's consent to an extension was only a matter of days. Davidson did not and cannot show that it suffered any prejudice from so short a delay. In such circumstances, the motion should have been granted. Accordingly, we reverse and grant the relief sought.

We do not reach plaintiff's challenge to the propriety of the notice to admit since this claim, not having been raised before the IAS Court, is not properly before us.

Concur — Sullivan, J.P., Williams, Tom and Andrias, JJ.