Opinion
2012-05-29
Lucia HERNANDEZ, as Administratrix for Sonia Garcia, etc., et al., Plaintiffs–Respondents, v. Alex CHAPARRO, Defendant, The City of New York, et al., Defendants–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. Edward R. Young & Associates, P.C., West Babylon (Seth I. Fields of counsel), for respondents.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. Edward R. Young & Associates, P.C., West Babylon (Seth I. Fields of counsel), for respondents.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 4, 2011, which denied defendants-appellants' motion to dismiss the complaint as untimely served and granted plaintiff's cross motion for leave to serve a late verified complaint, unanimously affirmed, without costs.
The motion court providently exercised its discretion, pursuant to CPLR 3012, in denying the motion and granting the cross motion ( see Lisojo v. Phillip, 188 A.D.2d 369, 369, 591 N.Y.S.2d 40 [1992] ). In light of the complexity of the guardianship and estate proceedings preceding service of the complaint, there appears to be a reasonable excuse for the delay ( id.). Further, considering plaintiff's handicap as an administrator and guardian ( see Santana v. Prospect Hosp., 84 A.D.2d 714, 714, 444 N.Y.S.2d 6 [1981] ), as well as the lack of discovery from defendants, plaintiff's affidavit of merit contained “evidentiary facts sufficient to establish a prima facie case” ( Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458 [1985] ). Moreover, defendants' failure to show any prejudice strongly favors excuse of plaintiff's failure to timely serve the complaint ( Lisojo, 188 A.D.2d at 369, 591 N.Y.S.2d 40;Santana, 84 A.D.2d at 714–715, 444 N.Y.S.2d 6).