Roxanne Gayle, E Plaintiff–Respondent, v. DDS (2018)

Supreme Court, Appellate Division, First Department, New York.

Roxanne Gayle, E Plaintiff–Respondent, v. Janet C. Body DDS, et al., Defendants–Appellants.

5455

Decided: January 16, 2018

Friedman, J.P., Mazzarelli, Kapnick, Webber, Moulton, JJ.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Kenneth J. Burford of counsel), for appellants. Scott & Liburd, New York (Kofi D. Scott of counsel), for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered December 11, 2015, which, inter alia, denied defendants' motion to dismiss the complaint for 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 defendants' motion to dismiss this action alleging dental malpractice. Despite the inadequacy of plaintiff's papers opposing dismissal, the record indicates only a minor delay to complete discovery. The circumstances presented also do not suggest an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants. Furthermore, “a credibly meritorious claim can be gleaned from the record” (Espinoza v. 373–381 Park Ave. S. LLC, 68 AD3d 532, 533 [1st Dept 2009]; see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632 [2003] )

CLERK

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