Evans v. Sandoval , 994 N.Y.S.2d 314 ( 2014 )

Evans v Sandoval (2014 NY Slip Op 07324)

Evans v Sandoval

2014 NY Slip Op 07324

Decided on October 29, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SANDRA L. SGROI, JJ.

2014-01464
(Index No. 503069/13)

[*1]Katrina Evans, appellant,

v

Juan Sandoval, et al., defendants, Lloy Anderson, respondent.

Widlitz & Stern, P.C., Huntington, N.Y. (Stephen I. Widlitz and Susan R. Nudelman of counsel), for appellant.

Gordon & Silber, P.C., New York, N.Y. (Andrew B. Kaufman and Steven J. Levy of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated October 25, 2013, which denied her motion pursuant to CPLR 3215 for leave to enter a judgment on the issue of liability against the defendant Lloy Anderson upon her failure to appear or answer and granted the cross motion of the defendant Lloy Anderson to deem her late answer timely served nunc pro tunc.

ORDERED that the order is affirmed, with costs.

In light of the lack of prejudice to the plaintiff resulting from the respondent's short delay in answering the complaint, the lack of willfulness on the part of the respondent, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the respondent and in granting the respondent's cross motion to deem her late answer timely served nunc pro tunc (see CPLR 2004, 3012[d]; Hutchinson v New York City Health & Hosps. Corp., 118 AD3d 945, 945; Klein v Yeshiva M'kor Chaim, 116 AD3d 672, 672; PDK Labs, Inc. v G.M.G. Trans W. Corp., 101 AD3d 970, 972).

DILLON, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court