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. 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.