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Goldstein v. Lopresti

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 2002
300 A.D.2d 442 (N.Y. App. Div. 2002)

Opinion

2002-01829

Argued November 12, 2002.

December 16, 2002.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated January 30, 2002, which granted the respective motions of the defendants Anthony Lopresti and Anthony Lopresti, M.D., P.C., and the defendants John J. Biordi and John J. Biordi, M.D., P.C., to dismiss the complaint insofar as asserted against them as time-barred pursuant to CPLR 3211(a)(5).

Bruce G. Clark Associates, P.C., New York, N.Y. (Kenneth Walsh of counsel), for appellant.

Ivone, Devine Jensen, LLP, Lake Success, N.Y. (Michael T. Ivone and Jonathan Rubin of counsel), for respondents Anthony Lopresti and Anthony Lopresti, M.D., P.C.

Keller, O'Reilly Watson, P.C., Woodbury, N.Y. (Laurence G. McDonnell and Kevin O'Reilly of counsel), for respondents John J. Biordi and John J. Biordi, M.D., P.C.

Before: DAVID S. RITTER, J.P., CORNELIUS J. O'BRIEN, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff argues that this medical malpractice action, which is otherwise time-barred, is timely pursuant to CPLR 205(a) because it was commenced within six months after the dismissal of a prior timely action based on the same series of occurrences. However, because the prior action was dismissed for neglect to prosecute, CPLR 205(a) is not applicable (see Benedetto v. Hodes, 112 A.D.2d 393; Wright v. Farlin, 42 A.D.2d 141; Schwartz v. Luks, 46 A.D.2d 634; CPLR 3012[b]). Thus, this action was properly dismissed.

RITTER, J.P., O'BRIEN, GOLDSTEIN and TOWNES, JJ., concur.


Summaries of

Goldstein v. Lopresti

Appellate Division of the Supreme Court of New York, Second Department
Dec 16, 2002
300 A.D.2d 442 (N.Y. App. Div. 2002)
Case details for

Goldstein v. Lopresti

Case Details

Full title:HARRY A. GOLDSTEIN, ETC., appellant, v. ANTHONY LOPRESTI, ETC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 16, 2002

Citations

300 A.D.2d 442 (N.Y. App. Div. 2002)
751 N.Y.S.2d 863

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