From Casetext: Smarter Legal Research

Burgess v. Brooklyn Jewish Hospital

Appellate Division of the Supreme Court of New York, Second Department
May 1, 2000
272 A.D.2d 285 (N.Y. App. Div. 2000)

Opinion

Argued March 16, 2000.

May 1, 2000.

In an action to recover damages for personal injuries, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Kings County (Friedman, J.), dated March 1, 1999, as denied, without prejudice to renewal upon proper papers, that branch of the plaintiff's motion which was for renewal of its motion to dismiss the complaint pursuant to CPLR 3012, and (2) from an order of the same court (Spodek, J.), dated June 15, 1999, which granted the plaintiff's second motion to renew and, upon renewal, denied the defendant's motion to dismiss the complaint.

Jackson Consumano, New York, N.Y. (Alexander D. Rosati of counsel), for appellant.

Bushell, Brody, Kleczka, Minasi O'Connor, LLP, Northport, N Y (Scott A. Brody of counsel), for respondent.

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, JJ.


DECISION ORDER

ORDERED that the appeal from the order dated March 1, 1999, is dismissed, as that order was superseded by the order dated June 15, 1999; and it further,

ORDERED that the order dated June 15, 1999, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The Supreme Court providently exercised its discretion in granting the plaintiff's second motion for renewal, and, upon renewal, denying the defendant's motion to dismiss the complaint. The Supreme Court properly accepted law office failure as an excuse for the plaintiff's failure to timely serve a complaint in response to the defendant's demand therefor (see, CPLR 2005). Given the strong public policy in favor of resolving cases on the merits, the apparent merit to the instant action, the plaintiff's lack of intent to abandon the action, the lack of prejudice to the defendant caused by the plaintiff's delay in serving the complaint, and the fact that the plaintiff's delay in serving the complaint was not willful, the plaintiff should not be deprived of her day in court (see, Ryerson Son, Inc. v. Petito, 133 A.D.2d 668; Rait v. Bauer, 121 A.D.2d 704; Katz v. Knoesel Serv. Ctr., Inc., 117 A.D.2d 781).

SANTUCCI, J.P., ALTMAN, FRIEDMANN and McGINITY, JJ., concur.


Summaries of

Burgess v. Brooklyn Jewish Hospital

Appellate Division of the Supreme Court of New York, Second Department
May 1, 2000
272 A.D.2d 285 (N.Y. App. Div. 2000)
Case details for

Burgess v. Brooklyn Jewish Hospital

Case Details

Full title:Anna Burgess, etc., respondent, v. Brooklyn Jewish Hospital, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 1, 2000

Citations

272 A.D.2d 285 (N.Y. App. Div. 2000)
707 N.Y.S.2d 462

Citing Cases

Citera v. Kramer

Plaintiff's opposition to defendant Kramer's motion to extend his time to answer is accompanied only by an…

White v. Vil. of Hempstead

A party seeking to vacate a default judgment bears the burden of demonstrating both a justifiable excuse for…