Vanek v. Mercy Hospital

135 A.D.2d 707, 522 N.Y.S.2d 607, 1987 N.Y. App. Div. LEXIS 52645

Opinion

— In a medical malpractice action to recover damages for personal injuries, Anthony D. Horvath and Mercy Hospital appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), dated March 18, 1987, which denied their respective motion and cross motion for summary judgment dismissing the complaint insofar as it is asserted against them and granted the plaintiff’s cross motion for an order vacating a conditional order of preclusion and extending the plaintiff’s time to serve a bill of particulars.

Ordered that the order is reversed, with costs, the plaintiff’s cross motion is denied with leave to resubmit the cross motion upon proper notice within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, and the matter is remitted to the Supreme Court, Nassau County, for a new determination on the appellants’ respective motion and cross motion, and the plaintiff’s cross motion, if resubmitted.

The trial court lacked jurisdiction to entertain the plaintiff’s cross motion based on his failure to comply with the notice provisions of CPLR 2215 and 2103 (see, Matter of Beck v Goodday, 24 AD2d 1016; Morabito v Champion Swimming Pool Corp., 18 AD2d 706; Silverman v Silverman, 261 App Div 1106). Accordingly, under the circumstances of this case, the order is reversed with leave to the plaintiff to resubmit his cross motion upon proper notice and the matter is remitted to the Supreme Court for a new determination on the appellants’ respective motion and cross motion and the plaintiff’s cross motion, if resubmitted. Mangano, J. P., Lawrence, Weinstein and Rubin, JJ., concur.