Buckley v. Fulop

• Decision Date: 27 June 2022
• Docket Number: Index No. 805102/2017,Motion Seq. No. 002
• Citation: 2022 NY Slip Op 32098 (U)
• Parties: WALTER JAY BUCKLEY, Plaintiff, v. JACQUELINE I. FULOP, D.M.D., P.C., individually and doing business as JACQUIESMILES, and JACQUELINE ILONA FULOP-GOODLING, D.M.D., individually and doing business as JACQUIESMILES, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 32098(U)

WALTER JAY BUCKLEY, Plaintiff,
v.
JACQUELINE I. FULOP, D.M.D., P.C., individually and doing business as JACQUIESMILES, and JACQUELINE ILONA FULOP-GOODLING, D.M.D., individually and doing business as JACQUIESMILES, Defendants.

Index No. 805102/2017, Motion Seq. No. 002

Supreme Court, New York County

June 27, 2022

Unpublished Opinion

MOTION DATE 04/29/2022

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion to/for DISMISS .

In this action to recover damages for dental malpractice, the defendants move to dismiss the complaint on the ground that the plaintiff filed the note of issue subsequent to the deadline set forth in the court's final discovery order. Alternatively, they move pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that the action is time-barred. The plaintiff opposes the action. The motion is denied.

By so-ordered stipulation dated August 2, 2021, the court extended the time for the plaintiff to serve and file the note of issue and certificate of readiness from July 30, 2021 until October 29, 2021. The plaintiff, however, waited until December 17, 2021 to serve and file the note of issue and certificate of readiness. The decision of whether to extend the note of issue filing deadline is dedicated to the provident exercise of the court's discretion (see Oliver v Town of Hempstead, 68 A.D.3d 1079, 1080-1081 [2d Dept 2009]). The court deems the late-filed note of issue to be an application to extend the note of issue filing deadline until December 17, 2021,

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and grants the application (see CPLR 2004 [application for extension of time may be granted even where application is made after expiration of deadline]). Although an action may be dismissed where a court providently denies an application to extend the note of issue filing deadline (see White v City of New York, 187 A.D.3d 457, 457 [1st Dept 2020]), the court notes that it has not refused to grant any such motion, and that the plaintiff, by submitting his own affidavit, an expert affirmation, and his attorney's affirmation, has established both the merits of his claim and that the late filing was due to excusable law office failure (see CPLR 2005; Storchevoy v Blinderman, 303 A.D.2d 672, 673 [2d Dept 2003]; cf. White v City of New York, 187 A.D.3d at 157-158 [plaintiff made no showing of merits or good cause, such as law office failure]). Moreover, inasmuch as the defendants do not claim that any discovery was outstanding, and the plaintiff's delay was only six weeks, there would be no prejudice to the defendants if the court extended the plaintiff's time to serve and file the note of issue (see Tolkoff v Goldstein, 185 A.D.3d 1085, 1088 [2d Dept 2020]). In addition, as the plaintiff correctly points out, "[a] court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met" (Patel v MBG Dev., Inc., 41 A.D.3d 682, 682 [2d Dept 2007]). Since the defendants have not served a demand that the plaintiff resume prosecution within 90 days, the court is without authority to dismiss the complaint based on his delay in filing the note of issue. Hence, the court denies that branch of the defendants' motion seeking dismissal of the complaint based on the plaintiff's late filing of the note of issue.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp.,

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18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).

"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).

On a summary judgment motion seeking to dismiss a cause of action as time-barred, "a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made," the burden shifts to the plaintiff to raise triable issue fact as to "whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period" (Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 A.D.3d 530, 531 [1st Dept 2020], quoting Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d 1085, 1085-1086 [2d Dept 2016]; see Murray v Charap, 150 A.D.3d 752 [2d Dept 2017]; Williams v New York City Health & Hosps. Corp.,

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84 A.D.3d 1358 [2d Dept 2011]; Rakusin v Miano, 84 A.D.3d 1051 [2d Dept 2011]).

The statute of limitations applicable to actions to recover for medical malpractice against a private health-care provider, based on an alleged departure from good and accepted practice, is 2½ years, measured from "the act, omission or failure complained of or last treatment where there is a continuous treatment for the same illness, injury or condition which gave rise to the said act omission or...