SKRABALAK v. FINN (1999)

Appeal from an order of the Supreme Court (Coutant, J.), entered February 13, 1998 in Broome County, which denied defendant's motion to dismiss the action and granted plaintiff's cross motion for an extension of time to serve the complaint.

This negligence and breach of contract action was brought against defendant to recover money damages for personal injuries arising out of defendant's medical care and treatment of plaintiff.   After service of a summons with notice, defendant served a notice of appearance and demand for a complaint.   Plaintiff neglected to timely serve a complaint which prompted defendant's motion to dismiss pursuant to CPLR 3012(b) and plaintiff's cross motion under CPLR 3012(d) for an order extending her time to plead.   Supreme Court denied defendant's motion and granted plaintiff's cross motion upon a finding of reasonable excuse and a meritorious defense (see, Honohan v. Hannaford Bros. Co., 208 A.D.2d 1177, 1178, 617 N.Y.S.2d 941;  Adams v. Agrawal, 187 A.D.2d 886, 887, 590 N.Y.S.2d 545;  Dattoria v. Dattoria, 161 A.D.2d 1009, 1010, 557 N.Y.S.2d 579).   Defendant now appeals.

Upon our review of the record, and according considerable deference to the discretion of the trial court (see, Ferran v. Dwyer, 252 A.D.2d 758, 759, 676 N.Y.S.2d 280, 281;  Muka v. Chalenski, 97 A.D.2d 912, 471 N.Y.S.2d 22), we find no abuse of discretion which would warrant a reversal of Supreme Court's extension of plaintiff's time to serve her complaint pursuant to CPLR 3012(d).

ORDERED that the order is affirmed, with costs.

GRAFFEO, J.

CARDONA, P.J., and PETERS, SPAIN and CARPINELLO, JJ., concur.