Rezk v. N.Y. Presbyterian Hospital/N.Y. Weill Cornell Ctr.
| Decision Date | 28 August 2019 |
| Docket Number | Index No. 12614/14,2018–08053 |
| Parties | Roumaryi REZK, Appellant, v. NEW YORK PRESBYTERIAN HOSPITAL/NEW YORK WEILL CORNELL CENTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 738
105 N.Y.S.3d 299 (Mem)
Roumaryi REZK, Appellant,
v.
NEW YORK PRESBYTERIAN HOSPITAL/NEW YORK WEILL CORNELL CENTER, Respondent.
2018–08053
Index No. 12614/14
Supreme Court, Appellate Division, Second Department, New York.
Argued—May 6, 2019
August 28, 2019
Sacco & Fillas, LLP, Astoria, N.Y. (Simon B. Landsberg of counsel), for Appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), for Respondent.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, the defendant's motion pursuant to CPLR 3216 and, in effect, pursuant to CPLR 3126, to dismiss the complaint is denied,
and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
The plaintiff commenced this medical malpractice action in August 2014, and issue was joined in October 2014. In December 2017, the defendant moved pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. The defendant also argued that the complaint should be dismissed pursuant to CPLR 3126. The defendant alleged that dismissal was warranted because the plaintiff had failed to narrow his demands to depose witnesses affiliated with the defendant in support of his case, despite stipulations and court orders directing him to do so. The Supreme Court granted the defendant's motion, citing both CPLR 3126 and 3216, based on the plaintiff's failure to narrow his demands to depose witnesses affiliated with the defendant. The plaintiff appeals.
With regard to CPLR 3216, "the courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue, unless there has first been served a [90 day notice]" ( Gatehouse v. New York City Hous....
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