UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 1, 2011
CARDIOLOGY ASSOCIATES, P.C., DEFENDANT.
The opinion of the court was delivered by: Thomas J. McAVOY Sr. U.S. District Judge
DECISION and ORDER
Before the Court is Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56 seeking to dismiss the action on the basis that it is untimely. Plaintiff filled an affidavit in opposition of the motion asserting that the action is timely. In response to Plaintiff's affidavit, Defendant filed an affidavit asserting that it "cannot maintain the motion in good faith at this time and asks the Court [to] deny [Defendant's motion to dismiss] without prejudice to refiling after discovery." Dkt. 13 at 2. Defendant asks the Court to do so because "it appears that Plaintiff's original Complaint was arguably timely." Without deciding the timeliness of Plaintiff's action, the Court grants Defendant's motion to withdraw its motion to dismiss.
It is, therefore, ORDERED that Defendant's motion to dismiss, or in the alternative for summary judgment (Dkt. 10), is DENIED without prejudice and Defendant's motion to withdraw the motion to dismiss (Dkt. No. 13) is GRANTED.
IT IS SO ORDERED.
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