Opinion
2014-06-25
Diane HUTCHINSON, etc., appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants; Brooklyn Nephrology Group, P.C., respondent.
Law Office of Robert Kaminski, PLLC, New York, N.Y., for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Allison R. Graffeo of counsel), for respondent.
Law Office of Robert Kaminski, PLLC, New York, N.Y., for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Allison R. Graffeo of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
In an action to recover damages, inter alia, for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated September 7, 2012, which denied her motion pursuant to CPLR 3215 for leave to enter judgment on the issue of liability against the defendant Brooklyn Nephrology Group, P.C., upon its failure to appear or answer, and granted the cross motion of the defendant Brooklyn Nephrology Group, P.C., to deem its late answer timely served nunc pro tunc.
ORDERED that the order is affirmed, with costs.
Within 20 days after the time to serve an answer had expired, the defendant Brooklyn Nephrology Group, P.C. (hereinafter the respondent), requested from the plaintiff's attorney an extension of time to serve an answer, thereafter served an answer, and promptly moved to vacate its default after the answer was rejected ( see EHS Quickstops Corp. v. GRJH, Inc., 112 A.D.3d 577, 976 N.Y.S.2d 171;Covaci v. Whitestone Constr. Corp., 78 A.D.3d 1108, 911 N.Y.S.2d 652;Sitigus Foods Corp. v. 72–02 N. Blvd. Realty Corp., 293 A.D.2d 597, 740 N.Y.S.2d 219;Buderwitz v. Cunningham, 101 A.D.2d 821, 822, 475 N.Y.S.2d 300). Since the plaintiff was not prejudiced by the short delay in the service of an answer, and in light of the lack of willfulness on the part of the respondent, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against the respondent on the issue of liability and granting the respondent's cross motion to deem its late answer timely served nunc pro tunc ( seeCPLR 2004, 3012[d]; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260;Darlind Constr., Inc. v. Prism Solar Tech., Inc., 109 A.D.3d 783, 971 N.Y.S.2d 119;Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876–877, 800 N.Y.S.2d 613;Daniels v. Bovis Lend Lease, Inc., 12 A.D.3d 342, 343, 783 N.Y.S.2d 308;Leogrande v. Glass, 106 A.D.2d 431, 433, 482 N.Y.S.2d 525).