Divjak v. New York Hospital-Cornell Medical Center

Appellate Division of the Supreme Court of New York

Divjak v. New York Hospital-Cornell Medical Center

219 A.D.2d 695, 631 N.Y.S.2d 758, 1995 N.Y. App. Div. LEXIS 9577

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

DecidedSeptember 25, 1995

StatusPublished

Cited by4 cases

This text of 219 A.D.2d 695 (Divjak v. New York Hospital-Cornell Medical Center) 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

Divjak v. New York Hospital-Cornell Medical Center, 219 A.D.2d 695, 631 N.Y.S.2d 758, 1995 N.Y. App. Div. LEXIS 9577 (N.Y. Ct. App. 1995).

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Opinion

In an action to recover damages for personal injuries, the plaintiff [696]*696appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Kings County (Levine, J.), dated February 28, 1994, which adhered to a prior determination of the same court contained in an order dated January 6, 1994, granting the defendant’s cross motion to dismiss the complaint.

Ordered that the amended order is reversed insofar as appealed from, on the law, with costs, the defendant’s cross motion to dismiss the complaint is denied, and the complaint is reinstated.

On July 8, 1993, the defendant served the plaintiff with notice pursuant to CPLR 3216 to serve and file a note of issue within 90 days. By notice of motion dated September 27, 1993, the defendant cross-moved to dismiss the action for failure to prosecute. Since the cross motion to dismiss was served before the expiration of the 90-day period, the Supreme Court lacked jurisdiction to entertain the cross motion (see, Lyons v Butler, 134 AD2d 576; Genovese v Kogel Materials Corp., 61 AD2d 820). Accordingly, the Supreme Court erred by granting the defendant’s cross motion to dismiss the action for failure to prosecute. Sullivan, J. P., Miller, Coper tino, Joy and Friedmann, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff [696]*696appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Kings County (Levine, J.), dated February 28, 1994, which adhered to a prior determination of the same court contained in an order dated January 6, 1994, granting the defendant’s cross motion to dismiss the complaint.

Ordered that the amended order is reversed insofar as appealed from, on the law, with costs, the defendant’s cross motion to dismiss the complaint is denied, and the complaint is reinstated.

On July 8, 1993, the defendant served the plaintiff with notice pursuant to CPLR 3216 to serve and file a note of issue within 90 days. By notice of motion dated September 27, 1993, the defendant cross-moved to dismiss the action for failure to prosecute. Since the cross motion to dismiss was served before the expiration of the 90-day period, the Supreme Court lacked jurisdiction to entertain the cross motion (see, Lyons v Butler, 134 AD2d 576; Genovese v Kogel Materials Corp., 61 AD2d 820). Accordingly, the Supreme Court erred by granting the defendant’s cross motion to dismiss the action for failure to prosecute. Sullivan, J. P., Miller, Coper tino, Joy and Friedmann, JJ., concur.

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Bluebook (online)

219 A.D.2d 695, 631 N.Y.S.2d 758, 1995 N.Y. App. Div. LEXIS 9577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/divjak-v-new-york-hospital-cornell-medical-center-nyappdiv-1995.

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