Walker v. Chaman

Jul 25, 2006
Versions:31 A.D.3d 751
820 N.Y.S.2d 516

In an action to recover damages for dental malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Patterson, J.), dated March 12, 2004, which granted the motion of the defendant Chaman Koul, sued herein as Koul Chaman, to dismiss the complaint insofar as asserted against him as time-barred, and denied his cross motion, inter alia, for an extension of time to serve a summons and complaint on the defendant Chaman Koul in a prior action which had been dismissed by order dated March 14, 2003, (2) an order of the same court dated March 17, 2004, which amended the order dated March 12, 2004, and (3) an order of the same court dated October 13, 2004, which denied the plaintiff‘s motions for reargument.

Ordered that the appeal from the order dated October 13, 2004, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

Ordered that the orders dated March 12, 2004, and March 17, 2004, are affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The plaintiff‘s cross motion for an extension of time to effect service in a prior action was properly denied. After the prior action was dismissed, there was no longer a timely-commenced, pending action in which the plaintiff could seek such leave; it was too late to seek leave in this action as it was commenced after the expiration of the applicable statute of limitations period (see Hambric v McHugh, 289 AD2d 290, 291-292 [2001]; see also Matter of Rodamis v Cretan’s Assn. Omonoia, Inc., 22 AD3d 859 [2005]). Moreover, the Supreme Court properly granted the respondent’s motion to dismiss the complaint insofar as asserted against him on the ground that it was time-barred (see Gem Flooring v Kings Park Indus., 5 AD3d 542, 543-544 [2004]; see also Donahue v Nassau County Healthcare Corp., 15 AD3d 332 [2005]). Schmidt, J.P., Santucci, Luciano and Covello, JJ., concur.