Jessamy v. Parkmed Associates

306 A.D.2d 33, 759 N.Y.S.2d 670, 2003 N.Y. App. Div. LEXIS 6309

Opinion

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered March 4, 2002, which granted the motion of third-party defendant Betty Schwartz, as executrix of the estate of Peter Schwartz (defendant Schwartz), to dismiss the third-party complaint against the estate on the ground of laches, unanimously reversed, on the law, without costs, the motion denied and the third-party complaint reinstated.

The court’s finding that the delay in the commencement of the third-party action caused prejudice to the third-party defendant is not supported by the record. The estate’s claims that it will take time to locate many of the now scattered witnesses who will need to be deposed and that, because Schwartz is long dead, “his own records [have] likely [been] disposed of’ are insufficient to demonstrate actual prejudice. The estate also fails to identify any record relevant to its defense that was maintained personally by Schwartz in addition to the official records maintained by defendant Parkmed, the clinic at which Schwartz operated on plaintiff pursuant to a contract with the partnership, in which he was a partner, that performed all medical care and services for Parkmed’s patients. Concur— Buckley, P.J., Rosenberger, Ellerin, Wallach

* and Lerner, JJ.

Deceased June 1, 2003.