Stulberger v. Bellucci

Appellate Division of the Supreme Court of New York

Stulberger v. Bellucci

251 A.D.2d 569, 674 N.Y.S.2d 772, 1998 N.Y. App. Div. LEXIS 7525

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

DecidedJune 22, 1998

StatusPublished

Cited by2 cases

This text of 251 A.D.2d 569 (Stulberger v. Bellucci) 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

Stulberger v. Bellucci, 251 A.D.2d 569, 674 N.Y.S.2d 772, 1998 N.Y. App. Div. LEXIS 7525 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), dated June 26, 1997, which, upon an order granting the motion of the defendant Steven Rothbaum to dismiss the complaint insofar as asserted against him as time-barred, dismissed the complaint insofar as asserted against that defendant.

Ordered that the judgment is affirmed, with costs.

The plaintiff commenced the instant action by the filing of a summons and complaint on October 19, 1994. Although the other defendants were timely served, and proof of service was timely filed, the defendant Dr. Steven Rothbaum was not served until August 1995.

Since the plaintiff admittedly failed to serve Rothbaum and to file proof of service within 120 days after the filing of the initial summons and complaint on October 19, 1994, and since Rothbaum did not appear within that 120-day period, the plaintiffs action was automatically deemed dismissed as to him (see, CPLR 306-b [a] [L 1992, ch 216, § 7, repealed by L [570]*5701997, ch 476, § 1]; Bochen v Schieffelin & Somerset Co., 242 AD2d 314; Brackett v St. Mary’s Hosp., 233 AD2d 357). Moreover, the service of the summons and complaint upon the defendant in August 1995 was beyond the additional 120-day period then provided by CPLR 306-b.

The plaintiffs attempt to avoid the consequences of his failure to comply with the provisions of CPLR 306-b by arguing that Rothbaum was united in interest with the codefendant Great Neck Women’s Health Care, which had been properly served, is unavailing. The record supports the Supreme Court’s determination that Rothbaum was merely an independent contractor having no unity of interest with that codefendant (see, Raschel v Rish, 69 NY2d 694). Miller, J. P., Thompson, Joy and Florio, JJ., concur.

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—In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), dated June 26, 1997, which, upon an order granting the motion of the defendant Steven Rothbaum to dismiss the complaint insofar as asserted against him as time-barred, dismissed the complaint insofar as asserted against that defendant.

Ordered that the judgment is affirmed, with costs.

The plaintiff commenced the instant action by the filing of a summons and complaint on October 19, 1994. Although the other defendants were timely served, and proof of service was timely filed, the defendant Dr. Steven Rothbaum was not served until August 1995.

Since the plaintiff admittedly failed to serve Rothbaum and to file proof of service within 120 days after the filing of the initial summons and complaint on October 19, 1994, and since Rothbaum did not appear within that 120-day period, the plaintiffs action was automatically deemed dismissed as to him (see, CPLR 306-b [a] [L 1992, ch 216, § 7, repealed by L [570]*5701997, ch 476, § 1]; Bochen v Schieffelin & Somerset Co., 242 AD2d 314; Brackett v St. Mary’s Hosp., 233 AD2d 357). Moreover, the service of the summons and complaint upon the defendant in August 1995 was beyond the additional 120-day period then provided by CPLR 306-b.

The plaintiffs attempt to avoid the consequences of his failure to comply with the provisions of CPLR 306-b by arguing that Rothbaum was united in interest with the codefendant Great Neck Women’s Health Care, which had been properly served, is unavailing. The record supports the Supreme Court’s determination that Rothbaum was merely an independent contractor having no unity of interest with that codefendant (see, Raschel v Rish, 69 NY2d 694). Miller, J. P., Thompson, Joy and Florio, JJ., concur.

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251 A.D.2d 569, 674 N.Y.S.2d 772, 1998 N.Y. App. Div. LEXIS 7525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stulberger-v-bellucci-nyappdiv-1998.

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