Teich v. Planned Parenthood of Westchester & Rockland Counties, Inc.

283 A.D.2d 307, 725 N.Y.S.2d 323, 2001 N.Y. App. Div. LEXIS 5362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2001
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered April 24, 2000, which, in an action for medical malpractice against defendant clinics and doctor, granted defendants’ motion to vacate their default in appearance, unanimously affirmed, without costs.

Defendants offer a reasonable excuse for their failure to timely appear. Defendant clinics’ administrator did not immediately notify defendants’ attorney of the process she had received against the clinics because she mistakenly believed such to be a subpoena from plaintiffs attorney for plaintiffs medical records, as corroborated by the fact that she did forward medical records to plaintiffs attorney shortly after service of process. As the delay was neither protracted nor prejudicial, the default was properly vacated (see, Burgos v Allcity Ins. Co., 272 AD2d 195; Barajas v Toll Bros., 247 AD2d 242; see also, Solowij v Otis El. Co., 260 AD2d 226). The affidavit of defendants’ expert is adequate to demonstrate a meritorious defense. Concur — Nardelli, J. P., Tom, Andrias, Rubin and Marlow, JJ.