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 |
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 plaintiff Francesca 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 (see Hedaya 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 (see Peters v. City of N.Y. Health & Hosps. Corp., 48 A.D.3d 329, 329, 851 N.Y.S.2d 527 [1st Dept.2008] ; Wynter v. Our Lady of Mercy Med. Ctr., 3 A.D.3d 376, 378, 771 N.Y.S.2d 94 [1st Dept.2004] ). Although defendants claim they will be unable to obtain the medical records of decedent Francesca Appleby because it has been six years since the alleged medical malpractice, defendants failed to submit an affidavit from someone with knowledge averring that they attempted to obtain the records, but were unable to do so.
We have considered defendants' remaining arguments and find them unavailing.
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...prejudice to him, i.e., the passage of time, is not, in itself, a sufficient basis for finding prejudice (Appleby v. Suggs, 135 A.D.3d 623, 23 N.Y.S.3d 235 [1st Dept.2016] ; Peterson v. City of New York, 286 A.D.2d 287, 289, 730 N.Y.S.2d 58 [1st Dept.2001] ). Defendant does not deny that th......
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