Thompson v. Aim Rent-Car, Inc.

227 A.D.2d 614, 643 N.Y.S.2d 405, 1996 N.Y. App. Div. LEXIS 6143

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Huttner, J.), dated February 6, 1995, which granted the defendants’ motion for leave to settle an order to effectuate a decision of the same court dated April 29, 1994, and (2) so much of an order of the same court, dated April 25, 1995, as prohibited the plaintiff from proceeding against the defendant Moshe Lebovits in this action.

Ordered that the appeal from the order dated February 6, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated April 25, 1995; and it is further;

Ordered that the order dated April 25, 1995, is affirmed insofar as appealed from, without costs or disbursements.

As the defense counsel showed good cause for his failure to timely settle an order effectuating the court’s April 29, 1994, decision, the court did not improvidently exercise its discretion in granting the defendants’ motion to settle the order beyond the 60-day period provided by 22 NYCRR 202.48 (a) (see, 22 NYCRR 202.48 [b]; Parisi v McElhatton, 209 AD2d 495).

Moreover, as the defendant Moshe Lebovits was never served with process in this action, the court properly prohibited the plaintiff from proceeding against Lebovits in this action, without prejudice to proceeding against Lebovits in a separate action seeking identical relief. We note that the plaintiff has obtained jurisdiction over Lebovits in that action by court-ordered substituted service (see, CPLR 308 [5]). Sullivan, J. P., Copertino, Santucci and Goldstein, JJ., concur.