Bivens v. Stearn

• Decision Date: 15 May 2019
• Docket Number: Index No. 4139/10,2017–00013
• Citation: 172 A.D.3d 991,98 N.Y.S.3d 467 (Mem)
• Court: New York Supreme Court — Appellate Division
• Parties: Crystal BIVENS, Respondent, v. Mitchell STEARN, etc., et al., Appellants.

172 A.D.3d 991
98 N.Y.S.3d 467 (Mem)

Crystal BIVENS, Respondent,
v.
Mitchell STEARN, etc., et al., Appellants.

2017–00013
Index No. 4139/10

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

Submitted—February 26, 2019
May 15, 2019

Patrick F. Adams, P.C., Great River, N.Y. (Joseph M. Nador of counsel), for appellants.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

172 A.D.3d 991

In an action, inter alia, to recover damages for dental malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated January 22, 2016. The order, insofar as appealed from, granted the plaintiff's motion to restore the case to the trial calendar and denied that branch of the defendants' motion which was to strike the plaintiff's second supplemental bill of particulars.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the plaintiff's motion to restore the case to the trial calendar is denied, and that branch of the defendants' motion which was to strike the plaintiff's second supplemental bill of particulars is denied as academic.

The plaintiff sought treatment from January 26, 2010, through January 30, 2010, from the defendant Mitchell Stearn, a dentist doing business as Sensocare Dental. On February 18, 2010, the plaintiff commenced this action to recover damages for dental malpractice and lack of informed consent against Stearn and Sensocare Dental Services, P.C. The case was marked off the trial calendar on May 5, 2014. There was no further activity on the case until August 2015, when the plaintiff moved to restore the case to the trial calendar. By that time, the action had been automatically dismissed pursuant to CPLR 3404. The plaintiff submitted, as an exhibit to her motion, a second supplemental bill of particulars. By order dated September 25, 2015, the Supreme Court, granted the plaintiff's motion on default.

98 N.Y.S.3d...