De Forte v. Doctors Hospital of Staten Island

66 A.D.2d 792, 410 N.Y.S.2d 903, 1978 N.Y. App. Div. LEXIS 14085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1978
• Status: Published

Opinion

In a medical malpractice action, defendants Di Benedetto and Doctors Hospital of Staten Island appeal (1) as limited by their briefs, from so much of two orders (one as to each of them) of the Supreme Court, Richmond County, dated December 7, 1977 and March 9, 1978, respectively, as, in granting their motions to dismiss the complaint, did so conditionally and (2) from an order of the same court, dated July 26, 1978, which, inter alia, denied their motion and cross motion to strike the note of issue and vacate the statement of readiness. Orders dated December 7, 1977 and March 9, 1978, affirmed insofar as appealed from, without costs or disbursements. Order dated July 26, 1978, modified to the extent that the cross motion of defendant Di Benedetto is granted as to him and the action against him is dismissed for failure to prosecute pursuant to the conditional order of December 7, 1977. As so modified, order affirmed, without costs or disbursements. The mere denial by plaintiff that he had ever received a copy of the order of December 7, 1977, with notice of entry, is insufficient to rebut the inference of proper mailing which may be drawn from defendant Di Benedetto’s affidavit of service and acknowledged warning letter to plaintiff (see Aetna Ins. Co. of Hartford, Conn, v Millard, 25 AD2d 341, 343; A & B Serv. Sta. v State of New York, 50 AD2d 973). Moreover, service by mail is complete regardless of delivery (see 14 Second Ave. Realty Corp. v Szalay, 16 AD2d 919). Upon this record, it was an abuse of discretion to deny defendant Di Benedetto’s cross motion to vacate, etc., where the plaintiff has failed to timely serve and file a note of issue pursuant to the conditional order of dismissal dated December 7, 1977. We have considered the defendants’ other contentions and find them to be without merit. Gulotta, J. P., Cohalan, Margett and O’Connor, JJ., concur.