Rowell v. Joyce

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Dillon, J.), dated March 12, 2002, which granted the plaintiffs’ motion to vacate a prior order of the same court dated July 5, 2001, granting the defendants’ motion to dismiss the complaint, upon the plaintiffs’ failure to object to that motion, and for leave to serve and file a late complaint. Ordered that the order is affirmed, with costs. Based upon the sufficiency of the plaintiffs’ affidavit of merit, the absence of any intent to abandon the action, the fact that the delay in serving the complaint was neither willful nor protracted and that the defendants have not been prejudiced thereby, as well as the strong public policy of resolving cases on the merits, we find that the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion (see Ryerson & Son v Petito, 133 AD2d 668 [1987]). The defendants’ remaining contentions are without merit. Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.