Banks v. Auerbach

Appellate Division of the Supreme Court of New York

Banks v. Auerbach

56 A.D.2d 819, 393 N.Y.S.2d 21, 1977 N.Y. App. Div. LEXIS 11121

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 28, 1977

StatusPublished

This text of 56 A.D.2d 819 (Banks v. Auerbach) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Banks v. Auerbach, 56 A.D.2d 819, 393 N.Y.S.2d 21, 1977 N.Y. App. Div. LEXIS 11121 (N.Y. Ct. App. 1977).

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Opinion

Order, Supreme Court, New York County, entered on December 7, 1976, denying defendant’s motion under CPLR 3211 (subd [a], par 5) to dismiss the complaint on the ground of the Statute of Limitations, is unanimously affirmed, without prejudice. Plaintiff-respondent shall recover of defendant-appellant $60 costs and disbursements of this appeal. The complaint alleges dental malpractice involving the leaving of a foreign object in plaintiff, not discovered until a time within the statutory period. The factual basis for defendant’s motion rests entirely on an affirmation of an attorney who has neither personal knowledge of the facts, nor acceptable dental expertise. Such an affirmation is insufficient to present a factual record for judicial action in this case. Concur—Kupferman, J. P., Lupiano, Silverman, Lane and Markewich, JJ.

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Order, Supreme Court, New York County, entered on December 7, 1976, denying defendant’s motion under CPLR 3211 (subd [a], par 5) to dismiss the complaint on the ground of the Statute of Limitations, is unanimously affirmed, without prejudice. Plaintiff-respondent shall recover of defendant-appellant $60 costs and disbursements of this appeal. The complaint alleges dental malpractice involving the leaving of a foreign object in plaintiff, not discovered until a time within the statutory period. The factual basis for defendant’s motion rests entirely on an affirmation of an attorney who has neither personal knowledge of the facts, nor acceptable dental expertise. Such an affirmation is insufficient to present a factual record for judicial action in this case. Concur—Kupferman, J. P., Lupiano, Silverman, Lane and Markewich, JJ.

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Bluebook (online)

56 A.D.2d 819, 393 N.Y.S.2d 21, 1977 N.Y. App. Div. LEXIS 11121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-auerbach-nyappdiv-1977.