Rosario v. Albany Express

2018 NY Slip Op 1386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2018
• Docket: 5848 303220/13
• Status: Published

Opinion

Rosario v Albany Express (2018 NY Slip Op 01386)

Rosario v Albany Express

2018 NY Slip Op 01386

Decided on March 1, 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 March 1, 2018
Acosta, P.J., Friedman, Richter, Kapnick, JJ.

5848 303220/13

[*1]Alexander Rosario, Plaintiff-Respondent,

v

Albany Express, et al., Defendants-Appellants, Jose A. Bonilla, et al., Defendants.

Shearer PC, Locust Valley (Mark G. Vaughan of counsel), for appellants.

Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about June 23, 2016, which denied the motion of defendants Albany Express and Dionicio Suarez to dismiss the complaint and all cross claims as against them for want of prosecution and 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 the motion to dismiss this personal injury action for want of prosecution (see Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [1st Dept 2009]). The record indicates that plaintiff actively litigated his claims against all four defendants, and appeared for a deposition and medical examination. The delay in completing discovery was primarily due to repeated adjournments of incarcerated defendant Gutierrez's deposition, as requested by his counsel (see Walker v Gibbons, 137 AD3d 483 [1st Dept 2016]; Donegan v St. Joseph's Med. Ctr., 283 AD2d 152 [1st Dept 2001]). Any delay by plaintiff in responding to movants' post-deposition demand for medical authorizations does not suggest "an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants" (Gayle v Body, ___AD3d___, 66 NYS3d 607, 607 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2018

CLERK