Starzyk v. Heslinga

• Decision Date: 06 November 2019
• Docket Number: Index No. 790/13,2017–02966,2017–05152
• Citation: 109 N.Y.S.3d 877 (Mem),177 A.D.3d 624
• Parties: Mary STARZYK, Respondent, v. Matthew HESLINGA, etc., Defendant, Carl Barbera, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 624

109 N.Y.S.3d 877 (Mem)

Mary STARZYK, Respondent,

v. Matthew HESLINGA, etc., Defendant,Carl Barbera, etc., et al., Appellants.

2017–02966

2017–05152

Index No. 790/13

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

Argued—September 13, 2019

November 6, 2019

Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for appellants.

Susan Dennehy, New York, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendants Carl Barbera and Orthopedic Associates of Dutchess County, P.C., appeal from (1) an order of the Supreme Court, Dutchess County (Christine A. Sproat, J.), dated February 7, 2017, and (2) an order of the same court dated April 24, 2017. The order dated February 7, 2017, insofar as appealed from, denied that branch of the motion of those defendants which was for leave to renew their motion for summary judgment dismissing the complaint insofar as asserted against them, and, in effect, upon reargument, adhered to a prior determination in an order of the same court dated December 13, 2016, denying that motion as untimely. The order dated April 24, 2017, denied the motion of those defendants to strike the note of issue and certificate of readiness and to compel certain additional discovery.

ORDERED that the order dated February 7, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated April 24, 2017, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action to recover damages for medical malpractice against, among others, Carl Barbera and Orthopedic Associates of Dutchess County, P.C. (hereinafter together the defendants). By notice of motion dated December 4, 2016, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In response thereto, the plaintiff's counsel submitted a letter to the Supreme Court dated December 13, 2016, informing the court that the defendants' motion for summary judgment was untimely. The court issued an order that day denying the defendants' motion for summary judgment as untimely.

Thereafter, the defendants moved, inter alia, for leave to renew and reargue their motion for summary judgment dismissing the complaint insofar as asserted against them. By order dated February 7, 2017, the Supreme Court, among other things, denied that branch of the defendants' motion which was for leave to renew. In addition, the Supreme Court, in effect, granted that branch of the defendants' motion which was for leave to reargue, and, upon reargument, adhered to its original determination denying the defendants' motion for summary judgment as untimely. The defendants appeal.

Contrary to the plaintiff's contention, since the Supreme Court reviewed the merits on that branch of the defendants' motion which was for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, the portion of the order made upon reargument is appealable (see Stile v. Jen Mar. Dev., LLC, 69 A.D.3d 707, 707, 891 N.Y.S.2d 667 ; Matter of Mattie M. v. Administration for Children's Servs., 48 A.D.3d 392, 393, 851 N.Y.S.2d 236 ; McNeil v. Dixon, 9 A.D.3d 481, 780 N.Y.S.2d 635 ). Since the defendants failed to demonstrate that the court misapprehended any of the relevant facts that were before it or misapplied any controlling principle of law, we agree with the court's adherence to its original determination denying the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them as untimely (see Budoff v. City of New York, 164 A.D.3d 737,...