Jankie-Alli v. Mount Sinai Medical Center

262 A.D.2d 188, 691 N.Y.S.2d 766, 1999 N.Y. App. Div. LEXIS 7455

Opinion

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 17, 1998, which, inter alia, denied defendants’ motion to dismiss the complaint for failure to prosecute, unanimously affirmed, without costs.

Plaintiffs’ failure to file a note of issue in response to defendants’ 90-day demand was properly excused upon a showing that plaintiffs and their attorneys frequently relocated throughout the time the action has been pending, and medical documentation, including some of defendants’ own records, demonstrating a meritorious cause of action. Defendants’ claim of prejudice is unpersuasive since it appears that the case will turn mainly on medical records rather than witnesses’ memories (see, Esbri v Westchester Sq. Med. Ctr., 260 AD2d 217). Concur — Rosenberger, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.