Opinion
2002-04693
Submitted March 19, 2003.
April 14, 2003.
In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Dillon, J.), dated March 12, 2002, which granted the plaintiffs' motion to vacate a prior order of the same court dated July 5, 2001, granting the defendants' motion to dismiss the complaint, upon the plaintiffs' failure to object to that motion, and for leave to serve and file a late complaint.
Maynard, O'Connor, Smith Catalinotto, LLP, Albany, N.Y. (Michael J. Snyder of counsel), for appellants Frederic Joyce, Albany Medical College Physician's Group, Albany Medical College, and Albany Medical Center Hospital.
O'Connor, McGuinness, Conte, Doyle Oleson, White Plains, N.Y. (Montgomery L. Effinger of counsel), for appellant Pulmonary and Critical Care Services, P.C.
John T. Melella, Poughkeepsie, N.Y., for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Based upon the sufficiency of the plaintiffs' affidavit of merit, the absence of any intent to abandon the action, the fact that the delay in serving the complaint was neither willful nor protracted and that the defendants have not been prejudiced thereby, as well as the strong public policy of resolving cases on the merits, we find that the Supreme Court providently exercised its discretion in granting the plaintiffs' motion (see Joseph T. Ryerson Son v. Petito, 133 A.D.2d 668).
The defendants' remaining contentions are without merit.
FEUERSTEIN, J.P., GOLDSTEIN, H. MILLER and RIVERA, JJ., concur.