Opinion
October 13, 1998
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
Defendant's default in serving an answer was properly excused where, at the outset, defendant advised plaintiff that it was having difficulty locating its file in the underlying medical malpractice action, which had concluded almost a year and a half earlier ( Gamiel v. University Hosp., 216 A.D.2d 80, lv dismissed 87 N.Y.2d 911), defendant shows a meritorious defense, and plaintiff fails to show prejudice as a result of the two and a half-month delay ( see, Elkman v. Southgate Owners Corp., 243 A.D.2d 356). We have considered plaintiff's argument that the answer defendant served after plaintiff had moved for a default judgment was frivolous and find it to be without merit.
Concur — Lerner, P.J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.