June 5, 2003.
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered March 4, 2002, which granted the motion of third-party defendant Betty Schwartz, as executrix of the estate of Peter Schwartz (defendant Schwartz), to dismiss the third-party complaint against the estate on the ground of laches, unanimously reversed, on the law, without costs, the motion denied and the third-party complaint reinstated.
Gina Bernardi, for third-party plaintiffs-appellants.
Dan Schiavetta, Jr., for third-party defendant-respondent.
The court's finding that the delay in the commencement of the third-party action caused prejudice to the third-party defendant is not supported by the record. The estate's claims that it will take time to locate many of the now scattered witnesses who will need to be deposed and that, because Schwartz is long dead, "his own records [have] likely [been] disposed of" are insufficient to demonstrate actual prejudice. The estate also fails to identify any record relevant to its defense that was maintained personally by Schwartz in addition to the official records maintained by defendant Parkmed, the clinic at which Schwartz operated on plaintiff pursuant to a contract with the partnership, in which he was a partner, that performed all medical care and services for Parkmed's patients.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.