Hoffmann v. Salitan

—Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered August 3, 1993, which, inter alia, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3215 (c), and held in abeyance defendant’s motion to dismiss the complaint because of lack of personal jurisdiction and expiration of the statute of limitations, pending a hearing and report by a Special Referee, unanimously affirmed, without costs. Plaintiff contended that she sustained her burden of proof by showing that defendant continued to treat her after he first injected her nose with Kenalog 10, a steroid, which allegedly caused plaintiff’s deformity. The record establishes that the initial treatment was in preparation for surgery after plaintiff returned from vacation (see, Ward v Kaufman, 120 AD2d 929). Plaintiff kept in contact with defendant by telephone and defendant allegedly examined her nose a final time on February 10, 1989 (see, McDermott v Torre, 56 NY2d 399, 406). While plaintiff did not move for a default judgment until three months after the time period permitted under the statute had expired (CPLR 3215 [c]), plaintiff proffered a reasonable excuse for the delay (see, Borgia v Interboro Gen. 92 Hosp., 59 NY2d 802), and furnished an affidavit of merit from a physician attesting that her cause of action has merit (see, Mosberg v Elahi, 80 NY2d 941). Concur — Rosenberger, J. P., Ellerin, Kupferman, Ross and Rubin, JJ.