Castagnazzi v. Schlecker

Appellate Division of the Supreme Court of the State of New York

Apr 13, 1987

Versions:129 A.D.2d 605

514 N.Y.S.2d 101

1987 N.Y. App. Div. LEXIS 45291

In a medical malpractice action, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated April 7, 1986, as denied his motion to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The record demonstrates that the defendant was personally served with a summons with notice, indicating that the action was based upon medical malpractice. Therefore, that branch of the defendant’s motion seeking dismissal of the complaint on the ground of lack of personal jurisdiction (see, CPLR 3211 [a] [8]) was properly denied (cf., Parker v Mack, 61 NY2d 114).

That branch of the motion seeking dismissal on Statute of Limitations grounds was also properly denied, inasmuch as the plaintiffs’ motion papers alleged that the facts necessary to demonstrate that the statute had been tolled could not then be stated (see, CPLR 3211 [d]). Mangano, J. P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.