Goldstein v. Lopresti

Appellate Division of the Supreme Court of New York

Goldstein v. Lopresti

300 A.D.2d 442, 751 N.Y.S.2d 863

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

DecidedDecember 16, 2002

StatusPublished

Cited by3 cases

This text of 300 A.D.2d 442 (Goldstein v. Lopresti) 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

Goldstein v. Lopresti, 300 A.D.2d 442, 751 N.Y.S.2d 863 (N.Y. Ct. App. 2002).

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Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated January 30, 2002, which granted the respective motions of the defendants Anthony Lopresti and Anthony Lopresti, M.D., P.C., and the defendants John J. Biordi and John J. Biordi, M.D., P.C., to dismiss the complaint insofar as asserted against them as time-barred pursuant to CPLR 3211 (a) (5).

Ordered that the order is affirmed, with one bill of costs.

[443]*443The plaintiff argues that this medical malpractice action, which is otherwise time-barred, is timely pursuant to CPLR 205 (a) because it was commenced within six months after the dismissal of a prior timely action based on the same series of occurrences. However, because the prior action was dismissed for neglect to prosecute, CPLR 205 (a) is not applicable (see Benedetto v Hodes, 112 AD2d 393; Wright v Farlin, 42 AD2d 141; Schwartz v Luks, 46 AD2d 634; CPLR 3012 [b]). Thus, this action was properly dismissed. Ritter, J.P., O’Brien, Gold-stein and Townes, JJ., concur.

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—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated January 30, 2002, which granted the respective motions of the defendants Anthony Lopresti and Anthony Lopresti, M.D., P.C., and the defendants John J. Biordi and John J. Biordi, M.D., P.C., to dismiss the complaint insofar as asserted against them as time-barred pursuant to CPLR 3211 (a) (5).

Ordered that the order is affirmed, with one bill of costs.

[443]*443The plaintiff argues that this medical malpractice action, which is otherwise time-barred, is timely pursuant to CPLR 205 (a) because it was commenced within six months after the dismissal of a prior timely action based on the same series of occurrences. However, because the prior action was dismissed for neglect to prosecute, CPLR 205 (a) is not applicable (see Benedetto v Hodes, 112 AD2d 393; Wright v Farlin, 42 AD2d 141; Schwartz v Luks, 46 AD2d 634; CPLR 3012 [b]). Thus, this action was properly dismissed. Ritter, J.P., O’Brien, Gold-stein and Townes, JJ., concur.

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Bluebook (online)

300 A.D.2d 442, 751 N.Y.S.2d 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-lopresti-nyappdiv-2002.

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