Kuttemperoor v. Mount Sinai Medical Center

269 A.D.2d 317, 704 N.Y.S.2d 462, 2000 N.Y. App. Div. LEXIS 2042

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about September 25, 1998, which denied plaintiffs motion for an extension of time to file a note of issue and, sua sponte, dismissed the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered December 31, 1998, which, insofar as appealable, denied plaintiffs motion to renew, unanimously affirmed, without costs.

The complaint, which alleges medical malpractice, was properly dismissed, upon the court’s own initiative taken upon plaintiffs motion for an extension of time to file made in response to defendants’ 90-day notice (see, CPLR 3216 [a]). The court’s action was merited because of the failure to submit a physician’s affidavit of merit (see, Mosberg v Elahi, 80 NY2d 941) and to provide a justifiable excuse for the six-year delay. The motion to renew was properly denied because it was not based on new facts (CPLR 2221 [e] [2]). The denial of reargument is not appealable (see, Matter of Schiavone v Board of Trustees, 261 AD2d 237). Concur — Williams, J. P., Tom, Saxe and Friedman, JJ.