Castagnazzi v. Schlecker

• Decision Date: 13 April 1987
• Citation: 514 N.Y.S.2d 101,129 A.D.2d 605
• Parties: Eleanor CASTAGNAZZI, et al., Respondents, v. Austin A. SCHLECKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 101

514 N.Y.S.2d 101

129 A.D.2d 605

Eleanor CASTAGNAZZI, et al., Respondents, v. Austin A. SCHLECKER, Appellant.

Supreme Court, Appellate Division, Second Department.

April 13, 1987.

Marian Polovy, New York City, for appellant.

Rubert & Gross, P.C., Brooklyn (Soledad Rubert, of counsel), for respondents.

Before MANGANO, J.P., and BRACKEN, NIEHOFF, KOOPER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated April 7, 1986, as denied his motion to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The record demonstrates that the defendant was personally served with a summons with notice, indicating that the action was based upon medical malpractice. Therefore, that branch of the defendant's motion seeking dismissal of the complaint on the ground of lack of personal jurisdiction (see, CPLR 3211[a][8] ) was properly denied (cf. Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316).

That branch of the motion seeking dismissal on Statute of Limitations grounds was also properly denied, inasmuch as the plaintiffs' motion papers alleged that the facts necessary to demonstrate that the statute had been tolled could not then be stated (see, CPLR 3211[d] ).