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FILED: NASSAU COUNTY CLERK 05/01/2019 11:37 AM INDEX NO. 611506/2018
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/01/2019
SHORT FORM ORDER r ORIGINAL'
SUPREME COURT - STATE OF NEW YORK
Present: ANTONIO I. BRANDVEEN
J. S. C.
DINO BONAVITA, TRIAL / IAS PART 25
NASSAU COUNTY
Plaintiff,
- against -
Index No. 611506/18
SYED MUJAHID SAYEED, M.D., PRECISION
SURGERY OF NEW YORK, P.C., NORTH Motion Sequence No. 001
SHORE UNIVERSITY HOSPITAL and
NORTH WELL HEALTH,
Defendants.
The following papers having been read on this motion:
Notice of Motion, Affidavits, & Exhibits 1
Answering Affidavits
Replying Affidavits
Briefs: Plaintiff's / Petitioner's
Defendant's / Respondent's
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of
the foregoing papers, including a sworn supporting statement, supporting documents
(Exhibit A-D), including but not limited to the pleadings and a verified bill of particulars,
photos, authorizations, and a notice of medical malpractice, this motion is decided as
follows:
The plaintiff moves, without opposition, for an order pursuant to CPLR §§ 2004
and 3406(a) granting the plaintiff an extension of time to file a notice of medical
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malpractice nunc pro tune, and deeming the notice of medical malpractice, as attached to
the moving papers, as timely filed and timely served upon defendants, with the electronic
filing service of this motion. There is no opposition to this motion.
The plaintiff commenced this action to recover damages for the pain and
suffering due to the medical malpractice and negligence by the defendants on or about
July 21, 2017, through October 31, 2017. In support of this motion, the plaintiff's
attorney states, in an affirmation, that due to clerical oversight, the notice of medical
malpractice was not timely filed, and attaches the notice of medical malpractice along
with copies of the pleadings, a verified bill of particulars and proof of service of the
response to the defendant's discovery demands with the necessary medical authorizations
to the moving papers.
CPLR 3406(a) provides that the plaintiff must file with the court a notice of
medical malpractice action not more than 60 days after issue is joined. The
notice should therefore have been filed in the instant case no later than
January 21, 1989. Pursuant to a motion under CPLR 2004, however, the
court may, in its discretion, extend a plaintiffs time to file such a notice,
and the plaintiff need not demonstrate a meritorious 'claim or a reasonable, .
excuse for the delay in order for the motion to be granted (see, Tewari v.
Tsoutsouras, 75 N.Y.2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143)
Casiano v New York Hosp.-Cornell Med. Or., 169 AD2d 806, 807 [2d Dept 1991].
The Court finds that the defendants have not shown substantial prejudice to them
in granting the plaintiff the relief sought (Mullen v Flushing Hosp., 161 AD2d 748, 749
[2d Dept 1990]). Here, the delay was short, and the defendants do not indicate any
hindrance in preparation of the matter or anything prevented them from taking some
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measure in support of their positions regarding this litigation (see Cherebin v Empress
Ambulance Serv., Inc., 43 AD3d 364 [1st Dept 2007]; see also Nardi v County of
Nassau, 18 AD3d 520 [2d Dept 2005]). Accordingly, it is
ORDERED that the plaintiffs motion for an order giving the plaintiff an extension
of time to file a notice of medical malpractice nunc pro tunc, and deeming the notice of
medical malpractice, as attached to the moving papers, as timely filed and timely served
upon defendants with the electronic filing of this order, is GRANTED. The plaintiff
shall serve a copy of this order with notice of entry upon the defendants within 30 days
of the date of this order
The foregoing constitutes the decision and order of the Court.
Dated: April 23, 2019 ENTER:
J. S. C.
HON. ANTONIO I. BRANDVEEN
NON FINAL DISPOSITION J.S.C.
r ORIGINA121
ENTERED
MAY 0 1 2019
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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FILED: NASSAU COUNTY CLERK 05/01/2019 11:37 AM INDEX NO. 611506/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/01/2019 SHORT FORM ORDER r ORIGINAL' SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN J. S. C. DINO BONAVITA, TRIAL / IAS PART 25 NASSAU COUNTY Plaintiff, - against - Index No. 611506/18 SYED MUJAHID SAYEED, M.D., PRECISION SURGERY OF NEW YORK, P.C., NORTH Motion Sequence No. 001 SHORE UNIVERSITY HOSPITAL and NORTH WELL HEALTH, Defendants. The following papers having been read on this motion: Notice of Motion, Affidavits, & Exhibits 1 Answering Affidavits Replying Affidavits Briefs: Plaintiff's / Petitioner's Defendant's / Respondent's UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including a sworn supporting statement, supporting documents (Exhibit A-D), including but not limited to the pleadings and a verified bill of particulars, photos, authorizations, and a notice of medical malpractice, this motion is decided as follows: The plaintiff moves, without opposition, for an order pursuant to CPLR §§ 2004 and 3406(a) granting the plaintiff an extension of time to file a notice of medical 1 of 3 FILED: NASSAU COUNTY CLERK 05/01/2019 11:37 AM INDEX NO. 611506/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/01/2019 malpractice nunc pro tune, and deeming the notice of medical malpractice, as attached to the moving papers, as timely filed and timely served upon defendants, with the electronic filing service of this motion. There is no opposition to this motion. The plaintiff commenced this action to recover damages for the pain and suffering due to the medical malpractice and negligence by the defendants on or about July 21, 2017, through October 31, 2017. In support of this motion, the plaintiff's attorney states, in an affirmation, that due to clerical oversight, the notice of medical malpractice was not timely filed, and attaches the notice of medical malpractice along with copies of the pleadings, a verified bill of particulars and proof of service of the response to the defendant's discovery demands with the necessary medical authorizations to the moving papers. CPLR 3406(a) provides that the plaintiff must file with the court a notice of medical malpractice action not more than 60 days after issue is joined. The notice should therefore have been filed in the instant case no later than January 21, 1989. Pursuant to a motion under CPLR 2004, however, the court may, in its discretion, extend a plaintiffs time to file such a notice, and the plaintiff need not demonstrate a meritorious 'claim or a reasonable, . excuse for the delay in order for the motion to be granted (see, Tewari v. Tsoutsouras, 75 N.Y.2d 1, 550 N.Y.S.2d 572, 549 N.E.2d 1143) Casiano v New York Hosp.-Cornell Med. Or., 169 AD2d 806, 807 [2d Dept 1991]. The Court finds that the defendants have not shown substantial prejudice to them in granting the plaintiff the relief sought (Mullen v Flushing Hosp., 161 AD2d 748, 749 [2d Dept 1990]). Here, the delay was short, and the defendants do not indicate any hindrance in preparation of the matter or anything prevented them from taking some Page 2 of 3 2 of 3 FILED: NASSAU COUNTY CLERK 05/01/2019 11:37 AM INDEX NO. 611506/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/01/2019 measure in support of their positions regarding this litigation (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364 [1st Dept 2007]; see also Nardi v County of Nassau, 18 AD3d 520 [2d Dept 2005]). Accordingly, it is ORDERED that the plaintiffs motion for an order giving the plaintiff an extension of time to file a notice of medical malpractice nunc pro tunc, and deeming the notice of medical malpractice, as attached to the moving papers, as timely filed and timely served upon defendants with the electronic filing of this order, is GRANTED. The plaintiff shall serve a copy of this order with notice of entry upon the defendants within 30 days of the date of this order The foregoing constitutes the decision and order of the Court. Dated: April 23, 2019 ENTER: J. S. C. HON. ANTONIO I. BRANDVEEN NON FINAL DISPOSITION J.S.C. r ORIGINA121 ENTERED MAY 0 1 2019 NASSAU COUNTY COUNTY CLERK'S OFFICE Page 3 of 3 3 of 3