Opinion
May 22, 2001.
Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered April 24, 2000, which, in an action for medical malpractice against defendants clinics and doctor, granted defendants' motion to vacate their default in appearance, unanimously affirmed, without costs.
Jonah Grossman, for Plaintiff-Appellant.
Timothy J. O'Shaughnessy, for Defendants-Respondents.
Before: Nardelli, J.P., Tom, Andrias, Rubin, Marlow, JJ.
Defendants offer a reasonable excuse for their failure to timely appear. Defendants clinics' administrator did not immediately notify defendants' attorney of the process she had received against the clinics because she mistakenly believed such to be a subpoena from plaintiff's attorney for plaintiff's medical records, as corroborated by the fact that she did forward medical records to plaintiff's attorney shortly after service of process. As the delay was neither protracted nor prejudicial, the default was properly vacated (see, Burgos v. Allcity Ins. Co., 272 A.D.2d 195; Barajas v. Toll Bros., 247 A.D.2d 242; see also, Solowij v. Otis Elev., 260 A.D.2d 226). The affidavit of defendants' expert is adequate to demonstrate a meritorious defense.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.