Amos v. Southampton Hosp., 2013-11234, Index No. 2829/09.

• Court: New York Supreme Court — Appellate Division
• Citation: 2015 N.Y. Slip Op. 06700,131 A.D.3d 906,15 N.Y.S.3d 837
• Decision Date: 02 September 2015
• Parties: Locksley C. AMOS, etc., et al., appellants, v. SOUTHAMPTON HOSPITAL, et al., respondents.
• Docket Number: 2013-11234, Index No. 2829/09.

131 A.D.3d 906
15 N.Y.S.3d 837
2015 N.Y. Slip Op. 06700

Locksley C. AMOS, etc., et al., appellants
v.
SOUTHAMPTON HOSPITAL, et al., respondents.

2013-11234, Index No. 2829/09.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 2, 2015.

15 N.Y.S.3d 838

The Baez Law Firm, PLLC, New York, N.Y. (Jose Anibal Baez of counsel), for appellants.

Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza and David C. Zegarelli of counsel), for respondent Southampton Hospital.

Santangelo Benvenuto & Slattery (James W. Tuffin, Islandia, N.Y., of counsel), for respondents Southampton Pediatric Associates, P.C., and Robert J. Gottlieb.

Farley, Holohan & Glockner, LLP, Mineola, N.Y. (Robert J. Farley and David A. Rosen of counsel), for respondents Hampton OB/GYN and Jennine Marie Varhola.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

Opinion

131 A.D.3d 906

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Spinner, J.), entered August 6, 2013, which denied their motion, among other things, to vacate a 90–day notice served pursuant to CPLR 3216, for leave to extend their time to file a note of issue, and to strike the answer of the defendant Southampton Hospital for its alleged failure to comply with discovery requests, and granted the respective cross motions of the defendant Southampton Hospital, the defendants Southampton Pediatric Associates, P.C., and Robert J. Gottlieb, and the defendants Hampton OB/GYN and Jennine Marie Varhola which were pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof denying those branches of the plaintiffs' motion which were to vacate the 90–day notices served pursuant to CPLR 3216 and for leave to extend their time to file a note of issue, and substituting therefor a provision granting those branches of the motion, and (2) by deleting the provision thereof granting the respective cross motions of the defendant Southampton Hospital, the defendants Southampton Pediatric Associates, P.C., and Robert J. Gottlieb, and the defendants Hampton OB/GYN and Jennine Marie Varhola which were pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them, and substituting therefor provisions denying those cross motions; as so modified, the order is affirmed, without costs or disbursements.

CPLR 3216 permits a court to dismiss the complaint in an action for want of prosecution only after the court has issued an order directing, or the defendant has served the plaintiff with a written notice demanding, that the plaintiff resume

131 A.D.3d 907

prosecution of the action and serve and file a note of issue within 90 days after receipt of the order or demand, and also stating that the failure to comply with the order or demand will serve as the basis for a motion to dismiss...