STATE OF NEW YORK

SUPREME COURT: CHAUTAUQUA COUNTY

________________________________

EVELYN I. MORGAN,

Plaintiff

vs

Index No. 10475

CARMELITA KELLY,

Defendant

_______________________________



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

Defendant



DECISION and ORDER



GERACE, J.


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

threshold.


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