Goldstein v. Columbia Presbyterian Medical Center

Appellate Division of the Supreme Court of New York

Goldstein v. Columbia Presbyterian Medical Center

1 A.D.3d 188, 767 N.Y.S.2d 213, 2003 N.Y. App. Div. LEXIS 11935

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 2003

StatusPublished

This text of 1 A.D.3d 188 (Goldstein v. Columbia Presbyterian Medical Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goldstein v. Columbia Presbyterian Medical Center, 1 A.D.3d 188, 767 N.Y.S.2d 213, 2003 N.Y. App. Div. LEXIS 11935 (N.Y. Ct. App. 2003).

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Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about June 4, 2002, which, upon the grant of re-argument or renewal, denied defendant-appellant’s motion to dismiss the action against her on statute of limitations grounds, and adhered to a prior order (same court and Justice) entered May 17, 2001, allowing plaintiff an extension of time to effect service on defendant-appellant, affirmed, without costs.

In this medical malpractice action to recover for personal injuries and wrongful death, the IAS court properly exercised its discretion in granting, in the interest of justice, plaintiffs motion pursuant to CPLR 306-b for an extension of time to effectuate service. The motion court considered all relevant factors in concluding that an extension of time was justified (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]; see also Wideman v Barbel Trucking, 300 AD2d 184, 185 [2002]). Appellant failed to show any prejudice, particularly in light of evidence in the record that she had actual notice of the action. Based on the totality of the circumstances, we conclude that plaintiffs delay in requesting an extension under CPLR 306-b was excusable (see Leader, 97 NY2d at 106). Concur—Nardelli, J.P., Andrias and Rosenberger, JJ.

Sullivan, J,

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Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about June 4, 2002, which, upon the grant of re-argument or renewal, denied defendant-appellant’s motion to dismiss the action against her on statute of limitations grounds, and adhered to a prior order (same court and Justice) entered May 17, 2001, allowing plaintiff an extension of time to effect service on defendant-appellant, affirmed, without costs.

In this medical malpractice action to recover for personal injuries and wrongful death, the IAS court properly exercised its discretion in granting, in the interest of justice, plaintiffs motion pursuant to CPLR 306-b for an extension of time to effectuate service. The motion court considered all relevant factors in concluding that an extension of time was justified (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]; see also Wideman v Barbel Trucking, 300 AD2d 184, 185 [2002]). Appellant failed to show any prejudice, particularly in light of evidence in the record that she had actual notice of the action. Based on the totality of the circumstances, we conclude that plaintiffs delay in requesting an extension under CPLR 306-b was excusable (see Leader, 97 NY2d at 106). Concur—Nardelli, J.P., Andrias and Rosenberger, JJ.

Sullivan, J,

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1 A.D.3d 188, 767 N.Y.S.2d 213, 2003 N.Y. App. Div. LEXIS 11935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-columbia-presbyterian-medical-center-nyappdiv-2003.

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