Appleby v. Suggs

• Decision Date: 26 January 2016
• Citation: 23 N.Y.S.3d 235,135 A.D.3d 623
• Parties: Francesca APPLEBY, et al., Plaintiffs–Respondents, v. William Duffy SUGGS, M.D., et al., Defendants–Appellants, Angela Diamond, M.D., Defendant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 623

23 N.Y.S.3d 235

Francesca APPLEBY, et al., Plaintiffs–Respondents,

v.William Duffy SUGGS, M.D., et al., Defendants–Appellants, Angela Diamond, M.D., Defendant.

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

Jan. 26, 2016.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellants.

Coiro, Wardi, Chinitz & Silverstein, Bronx (Michael A. Chinitz of counsel), for respondents.

FRIEDMAN, J.P., RENWICK, SAXE, MOSKOWITZ, JJ.

Order, Supreme Court, Bronx County(Douglas E. McKeon, J.), entered October 15, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion to substitute the executrix, Joanne Appleby, in place of deceased plaintiffFrancesca Appleby, and denied defendants-appellants' cross motion to dismiss the complaint, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiffs' motion and denying defendants' cross motion, despite plaintiffs' delay in moving for substitution (seeHedaya v. Hedaya,160 A.D.2d 625, 626, 559 N.Y.S.2d 247[1st Dept.1990] ).Defendants do not dispute that plaintiffs, before moving for substitution, attempted to resolve the issue with defendants, with the motion court's continued knowledge.Defendants' bare allegation of prejudice based upon the passing of time is insufficient to defeat plaintiffs' motion, especially since the case is likely to turn mainly on medical records rather than the memories of witnesses (seePeters v. City of N.Y. Health & Hosps. Corp.,48 A.D.3d 329, 329, ...