| Hutchinson v New York City Health & Hosps.Corp. |
| 2014 NY Slip Op 04734 [118 AD3d 945] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Diane Hutchinson, Appellant, v New York CityHealth and Hospitals Corporation et al., Defendants, and 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.
In an action to recover damages, inter alia, for medical malpractice and wrongfuldeath, 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 leaveto enter judgment on the issue of liability against the defendant Brooklyn NephrologyGroup, P.C., upon its failure to appear or answer, and granted the cross motion of thedefendant Brooklyn Nephrology Group, P.C., to deem its late answer timely served nuncpro tunc.
Ordered that the order is affirmed, with costs.
Within 20 days after the time to serve an answer had expired, the defendant BrooklynNephrology Group, P.C. (hereinafter the respondent), requested from the plaintiff'sattorney an extension of time to serve an answer, thereafter served an answer, andpromptly moved to vacate its default after the answer was rejected (see EHS Quickstops Corp. vGRJH, Inc., 112 AD3d 577 [2013]; Covaci v Whitestone Constr. Corp., 78 AD3d 1108 [2010];Sitigus Foods Corp. v 72-02 N. Blvd. Realty Corp., 293 AD2d 597 [2002];Buderwitz v Cunningham, 101 AD2d 821, 822 [1984]). Since the plaintiff wasnot prejudiced by the short delay in the service of an answer, and in light of the lack ofwillfulness on the part of the respondent, the existence of a potentially meritoriousdefense, and the public policy favoring the resolution of cases on the merits, the SupremeCourt providently exercised its discretion in denying the plaintiff's motion pursuant toCPLR 3215 for leave to enter judgment against the respondent on the issue of liabilityand granting the respondent's cross motion to deem its late answer timely served nuncpro tunc (see CPLR 2004, 3012 [d]; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]; Darlind Constr., Inc. v Prism SolarTech., Inc., 109 AD3d 783 [2013]; Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877[2005]; Daniels v Bovis LendLease, Inc., 12 AD3d 342, 343 [2004]; Leogrande v Glass, 106 AD2d431, 433 [1984]). Skelos, J.P., Leventhal, Cohen, LaSalle and Barros, JJ., concur.