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Dean Parasconda v. Club Mateem

November 30, 2011

DEAN PARASCONDA,
RESPONDENT,
v.
CLUB MATEEM, INC. - VISIONS DOING BUSINESS AS LIPSTICKS AND JOHN DOE (NAME BEING FICTITIOUS AND UNKNOWN AT THIS TIME), APPELLANTS.



Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered June 17, 2010.

Parasconda v Club Mateem, Inc.

Decided on November 30, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order (1) granted the branch of plaintiff's motion seeking leave to reargue his opposition to defendants' prior cross motion to dismiss the complaint and, upon reargument, denied defendants' cross motion, and (2) granted the branch of plaintiff's motion seeking, in the alternative, leave to extend his time to serve the summons and complaint.

ORDERED that the order is modified by providing that the branch of plaintiff's motion seeking, in the alternative, leave to extend his time to serve the summons and complaint is denied as academic; as so modified, the order is affirmed, without costs.

In this action to recover for personal injuries, plaintiff obtained a default judgment following an inquest. Defendants moved pursuant to CPLR 317 and 5015 to vacate the default judgment, alleging that plaintiff had failed to serve process upon them, and requested leave to interpose an answer, but did not move to dismiss the complaint pursuant to CPLR 3211 (a) (8). In his opposition papers, plaintiff attached proof of service of the summons and verified complaint.

By order entered April 23, 2009, the Civil Court granted defendants' motion to vacate the default judgment and restored the matter to the trial calendar. Defendants subsequently failed to interpose an answer.

Thereafter, plaintiff moved to compel disclosure pursuant to CPLR 3124. Defendants opposed the motion, and cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over them. In opposition to defendants' cross motion, plaintiff neglected to attach the aforementioned proof of service.

By order entered March 29, 2010, the Civil Court, among other things, granted defendants' cross motion to dismiss the complaint on the ground that "plaintiff. . . failed to attach proof of service on [defendants]."

Plaintiff then moved pursuant to CPLR 2221 (d) for leave to reargue his opposition to defendants' cross motion to dismiss the complaint and, upon reargument, to deny defendants' cross motion. In the alternative, plaintiff requested an extension of time to serve the summons and complaint pursuant to CPLR 306-b. Plaintiff attached the proof of service he had omitted from his initial opposition to defendants' cross motion.

By order entered June 17, 2010, the Civil Court granted plaintiff's motion and, upon reargument, denied defendants' cross motion. The Civil Court also extended plaintiff's time to serve a copy of the ...


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