Opinion
May 15, 1973
Order, Supreme Court. Bronx County, entered August 22, 1972, as resettled by order entered December 14, 1972, which denied the motion of the plaintiff to vacate her default in serving the complaint and granted defendant's cross motion to dismiss the complaint, unanimously reversed, on the law and the facts and in the exercise of discretion, with $60 costs and disbursements to abide the event, the motion to vacate the default granted and the cross motion to dismiss denied. The plaintiff's decedent, one Hector Maldonado, received a one half-inch stab wound which was allegedly nonvital. He received emergency treatment at Lincoln Hospital. He was transferred to Jacobi Hospital where exploratory surgery was performed resulting in negative findings. He was discharged from the hospital with an eight-inch open wound. Within a few hours of his discharge he was admitted to the Veterans Administration Hospital. Hector Maldonado died 20 days later. A notice of claim was timely filed with the city on September 5, 1969. A motion for discovery and inspection of the hospital records in order to frame a complaint was made but denied by Special Term. A summons was served on August 21, 1970 without a complaint. On August 24, 1970 a notice of appearance and demand for a complaint was served. Plaintiff served a complaint on June 7, 1972, which was rejected by the city as untimely. In view of the difficulties of the plaintiff in obtaining sufficient medical information which was caused in large part by the obstructionism of the defendant and in view of the lack of any prejudice shown by the defendant, it was an improvident exercise of discretion to deny relief to the plaintiff. Appeal from order, Supreme Court, Bronx County, entered October 10, 1972. denying reconsideration, unanimously dismissed as academic, without costs and without disbursements.
Concur — Nunez, J.P., Kupferman, Lane, Steuer and Capozzoli, JJ.