STATE OF NEW YORK
SUPREME COURT: CHAUTAUQUA COUNTY
EVELYN I. MORGAN,
Index No. 10475
ERICKSON, WEBB & SCOLTON
(Paul V. Webb, Jr., Esq.
of Counsel) for Plaintiff
HODGSON, RUSS, ANDREWS,
WOODS & GOODYEAR
(R. Anthony Rupp, III,
Esq. of Counsel) for
DECISION and ORDER
Defendant moves to compel plaintiff to accept late service of an answer.
The question for the Court is whether there is any prejudice to plaintiff. Ordinarily, there would be no prejudice by a delay as short as the unintentional delay in this case. The cases cited by defendant support this rationale.
Here, however, we have an 82 year old plaintiff; granting
the motion could prolong her case for another year or two. That constitutes prejudice. As early as July 1994, plaintiff's
attorney attempted to negotiate settlement without necessity of suit, but elicited no response.
Defendant raises affirmative defenses but there is no
affidavit of merit challenging liability. There is no medical
affidavit of merit either, but, defendant claims plaintiff's
own medical reports raise a serious question as to whether she
can meet the serious injury threshold.
Her medical diagnosis includes a probable undisplaced rib
fracture. If the diagnosis holds, plaintiff has met the
A balancing of the equities favors granting defendant's
motion to compel acceptance of the answer as to the serious
injury defense only, and granting plaintiff a partial summary
judgment on liability only.
The parties are directed to complete discovery within 60
days, at end of which time plaintiff must file a note of issue
and arrange for a trial within 90 days on the question of serious injury and damages.
This is the DECISION and ORDER of this Court. No further
Order shall be necessary.
Dated: February 10, 1995
Mayville, New York