Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bradley v. Konakanchi

Supreme Court of New York, Fourth Department

November 17, 2017

BEVERLY BRADLEY, AS GUARDIAN OF THE PERSON AND PROPERTY OF RHOEMEL LAMPKIN, AND BEVERLY BRADLEY, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
v.
RAMESH KONAKANCHI, D.O., DEFENDANT-APPELLANT, ET AL., DEFENDANT.

          CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

          BROWN CHIARI, LLP, BUFFALO (BRIAN R. HOGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

          PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

          NeMoyer J.

         Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered December 21, 2016. The order, among other things, denied the motion of defendant Ramesh Konakanchi, D.O., to dismiss the action against him.

         It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

         Opinion by NeMoyer, J.: We hold that CPLR 3404 does not apply when the note of issue is vacated.

         FACTS

         The material facts are undisputed. Plaintiff's ward was admitted to the psychiatric unit of a hospital in the City of Niagara Falls. Shortly thereafter, he allegedly jumped off the hospital's roof and sustained serious physical injuries. Plaintiff subsequently commenced the instant medical malpractice action against, inter alia, Ramesh Konakanchi, D.O. (defendant). Discovery ensued, and plaintiff eventually filed a note of issue. Defendant moved to vacate the note of issue pursuant to 22 NYCRR 202.21 (e), arguing that discovery was incomplete. Supreme Court granted the motion, vacated the note of issue, and ordered additional discovery.

         Over a year passed without the filing of a new note of issue [1]. Defendant then moved to dismiss the action against him pursuant to CPLR 3404, which provides for the administrative dismissal of inactive cases under certain circumstances. Plaintiff opposed the motion, arguing that CPLR 3404 is categorically inapplicable when the note of issue has been vacated. The court denied the motion, although it acknowledged the "conflicting decisions on the breadth of CPLR Rule 3404" and observed that "appellate clarification on the breadth of Rule 3404 would be instructive."

         Defendant appeals, and we now affirm.

         DISCUSSION

         This appeal turns entirely on the proper interpretation of CPLR 3404, which says, in full:

"A case in the supreme court or a county court marked off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.