Gayle v. Body

2018 NY Slip Op 255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2018
• Docket: 5455
• Status: Published

Opinion

Gayle v Body (2018 NY Slip Op 00255)

Gayle v Body

2018 NY Slip Op 00255

Decided on January 16, 2018

Appellate Division, First 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 January 16, 2018
Friedman, J.P., Mazzarelli, Kapnick, Webber, Moulton, JJ.

5455 805105/14E

[*1]Roxanne Gayle, Plaintiff-Respondent,

v

Janet C. Body DDS, et al., Defendants-Appellants.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Kenneth J. Burford of counsel), for appellants.

Scott & Liburd, New York (Kofi D. Scott of counsel), for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered December 11, 2015, which, inter alia, denied defendants' motion to dismiss the complaint for failure to file a note of issue after service of a CPLR 3216 demand, unanimously affirmed, without costs.

The court providently exercised its discretion in denying defendants' motion to dismiss this action alleging dental malpractice. Despite the inadequacy of plaintiff's papers opposing dismissal, the record indicates only a minor delay to complete discovery. The circumstances presented also do not suggest an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants. Furthermore, "a credibly meritorious claim can be gleaned from

the record" (Espinoza v 373-381 Park Ave. S. LLC, 68 AD3d 532, 533 [1st Dept 2009]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632 [2003])

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 16, 2018

CLERK