Appellate Division of the Supreme Court of New York, 2007

Gazes v. Bennett

Appellate Division of the Supreme Court of New York · Decided March 13, 2007

38 A.D.3d 287; 835 N.Y.S.2d 1

Cases that cite this one

9 later published cases cite this decision.

Martinez v. ST-DIL LLC (Appellate Division of the Supreme Court of New York 2021)
Morson v. 5899 Realty, LLC (Appellate Division of the Supreme Court of New York 2019)
Derouen v. Savoy Park Owner, L.L.C. (Appellate Division of the Supreme Court of New York 2013)
Derouen v. Savoy Park Owner, L.L.C. (Appellate Division of the Supreme Court of New York 2013)
Hutchinson v. Weller (Appellate Division of the Supreme Court of New York 2012)
Rivera v. Markowitz (Appellate Division of the Supreme Court of New York 2010)
Esdaille v. Whitehall Realty Co. (Appellate Division of the Supreme Court of New York 2009)
Barranco v. Cabrini Medical Center (Appellate Division of the Supreme Court of New York 2008)
Aqeel v. Tony Casale, Inc. (Appellate Division of the Supreme Court of New York 2007)

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

*288Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered April 14, 2006, which denied defendant’s motion for summary judgment as untimely, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Initially, we find that the motion court erred when it held that defendant’s motion was untimely pursuant to CPLR 3212 (a). A motion is “made” when the notice of motion is served (CPLR 2211; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561 [2006]; Russo v Eveco Dev. Corp., 256 AD2d 566, 567 [1998]). Accordingly, since the note of issue was filed on October 3, 2005, and defendant’s motion was made on January 25, 2006, when it was served by mail, it was timely as it was made within the 120-day statutory period (CPLR 3212 [a]).

Moreover, there is no dispute that the within medical malpractice action accrued during the pendency of debtor John Horan’s bankruptcy proceedings and, as such, was an asset of the bankruptcy estate. Horan, however, did not list the claim in the petition’s schedule of assets and, therefore, lacked the capacity to commence this action. Horan’s subsequent attempt to substitute Gazes, the bankruptcy trustee, as plaintiff, does not cure the defect (see National Fin. Co. v Uh, 279 AD2d 374, 375 [2001]; Pinto v Ancona, 262 AD2d 472, 473 [1999]). Accordingly, summary judgment dismissing the complaint is warranted. Concur—Friedman, J.P, Sullivan, Nardelli, Catterson and McGuire, JJ.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.