Gamiel v. Sulivan & Liapakis, P. C.

254 A.D.2d 96, 679 N.Y.S.2d 282, 1998 N.Y. App. Div. LEXIS 10686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1998
• Status: Published

Opinion

Orders, Supreme Court, New York County (Diane Lebedeff, J.), both entered February 6, 1998, which, in an action for legal malpractice, denied plaintiffs motion for a default judgment and for 22 NYCRR part 130 sanctions, and granted defendant’s cross motion to serve an amended answer, unanimously affirmed, without costs.

Defendant’s default in serving an answer was properly excused where, at the outset, defendant advised plaintiff that it was having difficulty locating its file in the underlying medical malpractice action, which had concluded almost a year and a half earlier (Gamiel v University Hosp., 216 AD2d 80, lv dismissed 87 NY2d 911), defendant shows a meritorious defense, and plaintiff fails to show prejudice as a result of the two and a half-month delay (see, Elkman v Southgate Owners Corp., 243 AD2d 356). We have considered plaintiffs argument that the answer defendant served after plaintiff had moved for a default judgment was frivolous and find it to be without merit. Concur — Lerner, P. J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.