Opinion
2012-10-25
Courtney McKENNEY, et al., Plaintiffs–Respondents, v. BETH ABRAHAM FAMILY OF HEALTH SERVICES, et al., Defendants–Respondents, Eastchester Rehabilitation and Health Center, Defendant, Morningside Nursing Home, Defendant–Appellant.
Ptashnik & Associates, New York (Robert E. Fein of counsel), for appellant. Alison Y. Brockington, Bronx, for McKenney respondents.
Ptashnik & Associates, New York (Robert E. Fein of counsel), for appellant. Alison Y. Brockington, Bronx, for McKenney respondents.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Elizabeth J. Sandonato of counsel), for Beth Abraham Family of Health Services, Flora Tabbudour, M.D., and The Jack D. Weil Hospital of the Albert Einstein College of Medicine A Division of Montefiore Medical Center, respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 9, 2011, which, insofar as appealed from, in this action alleging medical malpractice and wrongful death, denied the motion of defendant Morningside Nursing Home (MNH) to dismiss the complaint pursuant to CPLR 3211(a)(8), and granted plaintiffs' cross motion to extend the time for serving the summons and complaint on MNH, unanimously affirmed, without costs.
The motion court providently exercised its discretion in extending plaintiffs' time to serve process in the “interest of justice” ( see CPLR 306–b). The court appropriately considered that the statute of limitations had expired, that MNH was on actual notice of the action within the 120–day period and that it would not be prejudiced by the extension ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001];Hernandez v. Abdul–Salaam, 93 A.D.3d 522, 939 N.Y.S.2d 861 [1st Dept. 2012] ). Moreover, the physician's affidavit submitted by plaintiffs was sufficient, at the pre-discovery stage, to show a meritorious cause of action ( see e.g Hennebery v. Borstein, 91 A.D.3d 493, 496, 937 N.Y.S.2d 177 [1st Dept. 2012] ).