Baranello v. Westchester Square Medical Center

282 A.D.2d 259, 722 N.Y.S.2d 863, 2001 N.Y. App. Div. LEXIS 3588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2001
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about November 22, 1999, which, in an action for medical malpractice, granted defendant doctor’s motion to dismiss the action for failure to prosecute, and order, same court and Justice, entered on or about February 1, 2000, which denied defendant hospital’s motion to dismiss the action for failure to prosecute, unanimously affirmed, without costs.

Since the notice of entry of the November 22, 1999 order set forth an incorrect date of entry, its service was a nullity; accordingly, plaintiffs appeal was timely. The complaint was properly dismissed as against defendant doctor based upon plaintiff’s failure to file a note of issue in response to his second 90-day demand, his showing that the disclosure plaintiff claimed was still outstanding had in fact been provided, and plaintiffs failure to submit an expert medical affidavit and otherwise show that her action has merit. However, with respect to defendant hospital, since service of a 90-day demand is a condition precedent to a CPLR 3216 dismissal, and since its first 90-day demand that culminated in the denial of its prior motion to dismiss could not serve as the foundation for its second motion to dismiss, its failure to serve a second demand precluded the granting of its second motion (see, Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075). Concur — Rosenberger, J. P., Ellerin, Wallach, Lerner and Rubin, JJ.