King v. Dobriner
| Decision Date | 29 May 2013 |
| Citation | 106 A.D.3d 1053,2013 N.Y. Slip Op. 03817,966 N.Y.S.2d 162 |
| Parties | Muriel KING, etc., respondent, v. Mark W. DOBRINER, etc., et al., appellants, et al., defendant. |
| Court | New York Supreme Court — Appellate Division |
106 A.D.3d 1053
966 N.Y.S.2d 162
2013 N.Y. Slip Op. 03817
Muriel KING, etc., respondent,
v.
Mark W. DOBRINER, etc., et al., appellants, et al., defendant.
Supreme Court, Appellate Division, Second Department, New York.
May 29, 2013.
[966 N.Y.S.2d 163]
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellants.
Riconda & Garnett, LLP, Valley Stream, N.Y. (John Riconda of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
[106 A.D.3d 1053]In an action to recover damages for medical malpractice, etc., the defendants Mark W. Dobriner and Colon & Rectal Surgical Associates of L.I., P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered October 31, 2011, as granted those branches of the plaintiff's motion which were to vacate the dismissal of the action insofar as asserted against them pursuant to CPLR 3216 and to extend her time to file a note of issue.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were to vacate the dismissal of the action insofar as asserted against the defendants Mark W. Dobriner and Colon & Rectal Surgical Associates of L.I., P.C., pursuant to CPLR 3216 and to extend her time to file a note of issue are denied.
[106 A.D.3d 1054]A certification order of the Supreme Court dated March 31, 2011, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216 ( see Stallone v. Richard, 95 A.D.3d 875, 876, 943 N.Y.S.2d 225;Fenner v. County of Nassau, 80 A.D.3d 555, 914 N.Y.S.2d 653). Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( see Stallone v. Richard, 95 A.D.3d at 876, 943 N.Y.S.2d 225;Fenner v. County of Nassau, 80 A.D.3d at 555, 914 N.Y.S.2d 653). The plaintiff did neither. Thus, to avoid dismissal, the plaintiff was required to demonstrate a justifiable excuse for her failure to comply with the certification order and the existence of a potentially...
To continue reading
Request your trial
-
Mu–Jin Chen v. Cardenia
...summary judgment is required to make a prima facie showing that he or she is free from comparative fault (see Jones v. Vialva–Duke, 106 A.D.3d at 1053, 966 N.Y.S.2d 187 ; Graeber–Nagel v. Naranjan, 101 A.D.3d at 1078, 956 N.Y.S.2d 530 ; Mackenzie v. City of New York, 81 A.D.3d 699, 916 N.Y.......
-
Bank of N.Y. Mellon v. Mirna Umanzor-Martinez, Mortg. Elec. Registration Sys., Inc.
...in Further Support of Plaintiff's Summary Judgment Motion" rather than in the initial moving papers (see generally King v. Dobriner, 106 A.D.3d 1053, 966 N.Y.S.2d 162 [2d Dept. 2013] [it was improper for plaintiff to submit affidavit of merit from medical expert for the first time in reply ......
-
Jones v. Vialva-Duke
...23 A.D.3d 427, 427, 805 N.Y.S.2d 604;see Kim v. Acosta, 72 A.D.3d 648, 897 N.Y.S.2d 721). A driver who has the right-of-way may still [106 A.D.3d 1053]be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an inters......
-
Gallery v. Messerschmitt
...must submit the affirmation of an expert (see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353 ; King v. Dobriner, 106 A.D.3d 1053, 1054, 966 N.Y.S.2d 162 ; Knowles v. Schaeffer, 70 A.D.3d 897, 898, 893 N.Y.S.2d 880 ; Murray v New York City Health & Hosps. Corp., 52 A.......