Ubriaco v. John T. Mather Memorial Hospital

209 A.D.2d 404, 619 N.Y.S.2d 577, 1994 N.Y. App. Div. LEXIS 11050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1994
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Alfred Ekstrom appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated September 2, 1993, which denied his motion to dismiss the complaint insofar as it is asserted against him pursuant to CPLR 3216, and imposed costs and sanctions upon him for making a frivolous motion.

Ordered that the order is affirmed, with costs.

Since the appellant failed to serve his own written demand to the plaintiffs under CPLR 3216 to resume prosecution of the action, the action could not have been dismissed against the appellant (see, CPLR 3216 [b] [3]; Juracka v Ferrara, 137 AD2d 921, 923; Seidman v Shames, 130 AD2d 568; Fichera v City of New York, 79 AD2d 597). The court also properly exercised its discretion in imposing costs and sanctions upon the appellant pursuant to 22 NYCRR 130-1.1, due to his making a frivolous motion. Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.