Hernandez v Chaparro

Hernandez v Chaparro 2012 NY Slip Op 04110 Decided on May 29, 2012 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 May 29, 2012
Friedman, J.P., Sweeny, Renwick, Freedman, Abdus-Salaam, JJ.
7785N 114003/08

[*1]Lucia Hernandez, as Administratrix for Sonia Garcia, etc., et al., Plaintiffs-Respondents,

v

Alex Chaparro, Defendant, The City of New York, et al., Defendants-Appellants.




Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for appellants.
Edward R. Young & Associates, P.C., West Babylon (Seth I.
Fields of counsel), for respondents.

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, 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 plaintiff's failure to timely serve the complaint (Lisojo, 188 AD2d at 369; Santana, 84 AD2d at 714-715).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 29, 2012

CLERK