Hernandez v. Chaparro

95 A.D.3d 745, 944 N.Y.S.2d 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2012
• Status: Published

Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered March 4, 2011, which denied defendants-appellants’ motion to dismiss the complaint as untimely served and granted plaintiff’s cross motion for leave to serve a late verified complaint, unanimously affirmed, without costs.

The motion court providently exercised its discretion, pursuant to CPLR 3012, in denying the motion and granting the cross motion (see Lisojo v Phillip, 188 AD2d 369, [1992]). In light of the complexity of the guardianship and estate proceedings preceding service of the complaint, there appears to be a reasonable excuse for the delay (id.). Further, considering plaintiff’s handicap as an administrator and guardian (see Santana v Prospect Hosp., 84 AD2d 714, 714 [1981]), as well as the lack of discovery from defendants, plaintiff’s affidavit of merit contained “evidentiary facts sufficient to establish a prima facie case” (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985]). Moreover, defendants’ failure to show any prejudice strongly favors excuse of plaintiffs failure to timely serve the complaint (Lisojo, 188 AD2d at 369; Santana, 84 AD2d at 714-715). Concur — Friedman, J.P., Sweeny, Renwick, Freedman and Abdus-Salaam, JJ.