Solis v. Mary Immaculate Hospital

170 A.D.2d 666, 567 N.Y.S.2d 85, 1991 N.Y. App. Div. LEXIS 3182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1991
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendant Angelo Sersanti, M.D., appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Durante, J.), entered August 1, 1989, as denied his motion to dismiss the complaint insofar as asserted against him for the failure of the plaintiff to file a note of issue.

Ordered that the order is affirmed insofar as appealed from, with costs.

Citing the plaintiff’s alleged failure to prosecute this action, the appellant moved to dismiss (see, CPLR 3216). However, no 90-day demand to file a note of issue was served upon the plaintiff prior to the defendant’s motion (see, CPLR 3216 [b] [3]). Under such circumstances, the Supreme Court properly denied the motion (see, Airmont Homes v Town of Ramapo, 69 NY2d 901; Bauernfeind v Albany Med. Center Hosp., 154 AD2d 754; Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075; see also, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3216.07). Thompson, J. P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.