Esbri v. Westchester Square Medical Center , 688 N.Y.S.2d 54 ( 1999 )

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 14, 1998, which denied defendants’ motions to dismiss the action as abandoned, and granted plaintiffs’ cross motion to restore the action to the calendar, unanimously affirmed, with costs.

Plaintiffs’ failure to file, or to correctly file, the note of issue as required by a prior court order was properly excused where the note of issue was served on defendants, and all parties believed it had been filed until the error was discovered by plaintiffs and immediately rectified. A physician’s affidavit, previously determined to be sufficient to defeat defendants’ summary judgment motion, adequately demonstrated the merits of plaintiffs’ malpractice case, their exchange of discovery and response to defense motions challenging their expert disclosure rebutted the presumption of abandonment, and the mere passage of time since the commencement of the action is not overly prejudicial since the action turns on medical records rather than witnesses’ memories (see, Sanchez v Javind Apt. Corp., 246 AD2d 353, 356). Concur — Rosenberger, J. P., Tom, Mazzarelli and Saxe, JJ.