McKenney v Beth Abraham Family of Health Servs.

McKenney v Beth Abraham Family of Health Servs. 2012 NY Slip Op 07203 Decided on October 25, 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 October 25, 2012
Mazzarelli J.P., Sweeny, Renwick, Richter, Román, JJ.
8384 303315/09

[*1]Courtney McKenney, et al., Plaintiffs-Respondents,

v

Beth Abraham Family of Health Services, et al., Defendants-Respondents, Eastchester Rehabilitation and Health Center, Defendant, Morningside Nursing Home, Defendant-Appellant.




Ptashnik & Associates, New York (Robert E. Fein of counsel),
for appellant.
Alison Y. Brockington, Bronx, for McKenney respondents.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White
Plains (Elizabeth J. Sandonato of counsel), for Beth Abraham
Family of Health Services, Flora Tabbudour, M.D., and The
Jack D. Weil Hospital of the Albert Einstein College of
Medicine A Division of Montefiore Medical Center, respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 9, 2011, which, insofar as appealed from, in this action alleging medical malpractice and wrongful death, denied the motion of defendant Morningside Nursing Home (MNH) to dismiss the complaint pursuant to CPLR 3211(a)(8), and granted plaintiffs' cross motion to extend the time for serving the summons and complaint on MNH, unanimously affirmed, without costs.

The motion court providently exercised its discretion in extending plaintiffs' time to serve process in the "interest of justice" (see CPLR 306-b). The court appropriately considered that the statute of limitations had expired, that MNH was on actual notice of the action within the 120-day period and that it would not be prejudiced by the extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Hernandez v Abdul-Salaam, 93 AD3d 522 [1st Dept [*2]2012]). Moreover, the physician's affidavit submitted by plaintiffs was sufficient, at the pre-discovery stage, to show a meritorious cause of action (see e.g
Hennebery v Borstein, 91 AD3d 493, 496 [1st Dept 2012]).

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

ENTERED: OCTOBER 25, 2012

CLERK