Rijos v. Schwab

289 A.D.2d 467, 735 N.Y.S.2d 411, 2001 N.Y. App. Div. LEXIS 12911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendants Emanuel Schiowitz, James W. Brady, and Victor McLaughlin appeal from so much of an order of the Supreme Court, Kings County (Levine, J.), dated June 13, 2001, as denied their motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them based upon the plaintiff’s failure to comply with a prior order of the same court dated January 19, 2001.

Ordered that the appeal by the defendant Victor McLaughlin is dismissed as academic; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal by the defendant Victor McLaughlin must be dismissed as academic because the order appealed from granted his separate motion for summary judgment dismissing the complaint insofar as asserted against him, and no appeal has been taken from that part of the order.

Under the circumstances presented herein, the Supreme Court providently exercised its discretion in denying the remaining appellants’ motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them, since the plaintiff complied, although several weeks late, with the court’s prior order (see, CPLR 3126; Frias v Fortini, 240 AD2d 467; Kubacka v Town of N. Hempstead, 240 AD2d 374). Krausman, J. P., Luciano, Adams and Prudenti, JJ., concur.