Appellate Division of the Supreme Court of New York, 2000

Garofalo v. Mercy Hospital

Appellate Division of the Supreme Court of New York · Decided April 24, 2000

271 A.D.2d 642; 706 N.Y.S.2d 477; 2000 N.Y. App. Div. LEXIS 4489

Cases that cite this one

15 later published cases cite this decision.

Furrukh v. Forest Hills Hospital (Appellate Division of the Supreme Court of New York 2013)
Furrukh v. Forest Hills Hospital (Appellate Division of the Supreme Court of New York 2013)
Blackwell v. Long Island College Hospital (Appellate Division of the Supreme Court of New York 2003)
McLoughlin v. New York Eye Specialists (New York Supreme Court, New York County 2024)
Maraj v. Polevich (New York Supreme Court, Nassau County 2024)
Thompson v. Beth Israel Med. Ctr. (Appellate Division of the Supreme Court of New York 2019)
Rizzo v. Balish & Friedman (Appellate Division of the Supreme Court of New York 2017)
Slovney v. Nasso (Appellate Division of the Supreme Court of New York 2017)
Hou v. Chun Fu Wang (Appellate Division of the Supreme Court of New York 2004)
Davis v. Goodsell (Appellate Division of the Supreme Court of New York 2004)
Simon v. City of Syracuse Police Department (Appellate Division of the Supreme Court of New York 2004)
Gregory v. Ford Motor Credit Co. (Appellate Division of the Supreme Court of New York 2002)
Victor Associates, Inc. v. Board of Assessment Review for Victor (Appellate Division of the Supreme Court of New York 2002)
Macancela v. Pekurar (Appellate Division of the Supreme Court of New York 2001)
Drapaniotis v. 36-08 33rd Street Corp. (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Segal, J.), dated January 13, 1999, which granted the motion of the defendant Mercy Hospital to vacate the note of issue and to dismiss the action for want of prosecution.

Ordered that the order is affirmed, with costs.

The plaintiffs commenced this action against the defendant Mercy Hospital (hereinafter Mercy) and an unknown assailant in November 1996, and issue was joined by Mercy in December 1996. On July 7, 1998, Mercy served upon the plaintiffs a demand that, pursuant to CPLR 3216, they serve and file a note of issue within 90 days. On September 30, 1998, the plaintiffs filed a note of issue and certificate of readiness. Upon Mercy’s motion, the Supreme Court vacated the note of issue and dismissed the action. We affirm.

Contrary to the plaintiffs’ contentions, the court properly vacated the note of issue and dismissed the action. While the filing of a note of issue within 90 days precludes a court from dismissing the action (see, CPLR 3216 [c]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), here the plaintiffs’ certificate of readiness incorrectly stated that all pretrial discovery had been completed when it had not been. Because this was a material fact, the filing of the note of issue was a nullity and therefore it was properly vacated (see, 22 NYCRR 202.21 [e]; Spilky v TRW, Inc., 225 AD2d 539; see also, Audiovox Corp. v Benyamini, 265 AD2d 135). Further, in opposing the motion to dismiss, the plaintiffs failed to argue that in the event that the note of issue was properly vacated, *643they had a meritorious claim and excusable delay (see, Zelik v Policy Signing & Accounting Centre, 258 AD2d 580). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.