Bidetti v. Salter

Decision Date25 February 1985
Citation108 A.D.2d 890,485 N.Y.S.2d 772
PartiesMari Anne BIDETTI, et al., Appellants, v. Elizabeth Guion SALTER, etc., Respondent.
CourtNew York Supreme Court — Appellate Division

Weiss, Molod, Berkowitz & Godosky, P.C. (Seligson, Rothman & Rothman, Martin S. Rothman, Frederick M. Molod and Alyne I. Diamond, New York City, of counsel), for appellants.

Schiavetti, Begos & Nicholson, New York City (Kenneth Mauro, New York City, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, GIBBONS and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, plaintiffs appeal (1) from an order of the Supreme Court, Westchester County, entered June 10, 1983, which granted defendant's motion to dismiss the complaint as time barred and denied as moot their cross motion for leave to serve an amended complaint and strike defendant's affirmative defenses based on lack of personal jurisdiction and the Statute of Limitations, and (2) as limited by their brief, from so much of an order of the same court, entered September 20, 1983, as, upon reargument, adhered to the original determination.

Appeal from the order entered June 10, 1983, dismissed, without costs or disbursements. That order was superseded by the order entered September 20, 1983, made upon reargument.

Order entered September 20, 1983, reversed insofar as appealed from, on the law, without costs or disbursements, defendant's motion to dismiss the complaint as time barred denied, and plaintiffs' cross motion granted to the extent that (1) they are given leave to serve an amended complaint and (2) defendant's affirmative defense based on lack of personal jurisdiction is stricken. Plaintiffs' amended complaint annexed to its notice of cross motion is deemed served.

This is an action alleging medical malpractice on the part of defendant's decedent. Defendant's answer interposed the affirmative defenses, inter alia, of lack of personal jurisdiction and the Statute of Limitations. Thereafter, defendant moved to dismiss the complaint on the ground that plaintiffs' claim was time barred (CPLR 3211). Plaintiffs, in turn, cross-moved for leave to amend their complaint so as to allege that the claimed injuries were first discovered in December, 1980, and for an order striking defendant's defenses based on lack of personal jurisdiction and the Statute of Limitations. Plaintiffs annexed to the cross motion papers an affidavit of service of the summons and complaint. In her opposition, defendant asserted no facts to dispute service. Special Term granted defendant's motion to dismiss and denied the cross motion as moot; upon reargument, the court adhered to its original determination. These appeals followed.

At oral argument on these appeals, the parties stipulated on the record that (1) "this Court modify the order of the court below by re-instating the plaintiffs' action and permitting the plaintiffs to serve an amended complaint" and (2) "only remaining issue for this...

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  • Braune v. Abbott Laboratories
    • United States
    • U.S. District Court — Eastern District of New York
    • 16 de agosto de 1995
    ...v. Radio Frequency Co., 207 A.D.2d 1012, 616 N.Y.S.2d 824, 824 (App.Div. 4th Dep't 1994) (citing Glod); Bidetti v. Salter, 108 A.D.2d 890, 485 N.Y.S.2d 772, 773 (App.Div. 2d Dep't 1985) (discovery rule applied in medical malpractice context, N.Y.Civ. Prac.L. & R. 214(6)). This result follow......
  • Great Plains Capital Corp. v. Levi
    • United States
    • New York Civil Court
    • 22 de agosto de 2012
    ...facie evidence of proper service unless rebutted by a sworn statement of someone with personal knowledge. Bidetti v. Salter, 108 A.D.2d 890, 485 N.Y.S.2d 772 (2nd Dept.1985); Mitchel1 v. Mendez, 107A.D.2d 737, 484 N.Y.S.2d 98 (2nd Dept.1985). Where, however, there is a sufficient sworn deni......
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    • New York Civil Court
    • 25 de abril de 2023
    ... ... service unless rebutted by a sworn statement of someone with ... personal knowledge (Bidetti v Salter, 108 A.D.2d 890 ... [2nd Dept 1985]. Based upon the foregoing, ... petitioner's motion to dismiss respondent's third ... affirmative ... ...
  • Robinson v. Kamens
    • United States
    • U.S. District Court — Southern District of New York
    • 6 de julho de 1987
    ...1987, at ¶ 8. On the present record, defendant has not demonstrated that plaintiff's claim is timebarred.3 See Bidetti v. Salter, 108 A.D.2d 890, 891, 485 N.Y.S.2d 772, 773 (1985) (date of accrual is an issue of With respect to plaintiff's cause of action for breach of contract, defendant a......
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