Rosario v. Albany Express

• Decision Date: 01 March 2018
• Docket Number: Index 303220/13,5848
• Citation: 159 A.D.3d 403,69 N.Y.S.3d 469 (Mem)
• Parties: Alexander ROSARIO, Plaintiff–Respondent, v. ALBANY EXPRESS, et al., Defendants–Appellants, Jose A. Bonilla, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 403

69 N.Y.S.3d 469 (Mem)

Alexander ROSARIO, Plaintiff–Respondent,

v. ALBANY EXPRESS, et al., Defendants–Appellants,Jose A. Bonilla, et al., Defendants.

5848

Index 303220/13

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

ENTERED: MARCH 1, 2018

Shearer PC, Locust Valley (Mark G. Vaughan of counsel), for appellants.

Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for respondent.

Acosta, P.J., Friedman, Richter, Kapnick, JJ.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about June 23, 2016, which denied the motion of defendants Albany Express and Dionicio Suarez to dismiss the complaint and all cross claims as against them for want of prosecution and 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 the motion to dismiss this personal injury action for want of prosecution (see Espinoza v. 373–381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [1st Dept. 2009] ). The record indicates that plaintiff actively litigated his claims against all four defendants, and appeared for a deposition and medical examination. The delay in completing discovery was primarily due to repeated adjournments of incarcerated defendant Gutierrez's deposition, as requested by his counsel (see Walker v. Gibbons, 137 A.D.3d 483, 26 N.Y.S.3d 463 [1st Dept. 2016] ; Donegan v. St. Joseph's Med. Ctr., 283 A.D.2d 152, 724 N.Y.S.2d 582 [1st Dept. 2001] ). Any delay by plaintiff in responding to movants' post-deposition demand for medical authorizations does not suggest "an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants" ( Gayle v. Body, 157 A.D.3d 541, 66 N.Y.S.3d 607, 607 [1st Dept. 2018] ).