Opinion
13634 Index No. 28030/18E Case No. 2020-03688
04-22-2021
Reinaldo ESTRELLA, Plaintiff–Appellant, v. EAST TREMONT MEDICAL CENTER et al., Defendants–Respondents.
Manuel D. Gomez, New York, for appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondents.
Manuel D. Gomez, New York, for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Judgment, Supreme Court, Bronx County (Joseph Capella, J.), entered October 18, 2019, dismissing the complaint pursuant to CPLR 3012–a, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for further proceedings in accordance with this decision.
As defendants concede, reversal is warranted in light of Fortune v. New York City Health & Hosps. Corps., 193 A.D.3d 138, 142 N.Y.S.3d 54 (1st Dept. 2021), in which we held that there is no automatic dismissal of an action under CPLR 3012–a for failure to timely file a certificate of merit.
Contrary to defendants' contention, the motion court properly determined that the action was within the statute of limitations pursuant to CPLR 205(a). The prior action had been dismissed under CPLR 3215(c) for plaintiff's failure to proceed to entry of judgment within one year of default, nor did the court include any findings of specific conduct demonstrating "a general pattern of delay in proceeding with the litigation," as required by statute to establish neglect to prosecute (see CPLR 205[a] ; Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 198–199, 47 N.Y.S.3d 80 [2d Dept. 2017], appeal dismissed 29 N.Y.3d 1023, 55 N.Y.S.3d 157, 77 N.E.3d 892 [2017] ).
We remand the matter for determination of the remaining branch of defendants' motion to dismiss pursuant to CPLR 3211(a)(5) for lack of personal jurisdiction, which the court deemed moot and did not address. While plaintiff's affidavits of service constituted prima facie evidence of proper service upon defendants, the affidavits of Randy Pierantoni and Guy Renvoize, M.D., raised questions of fact regarding service of process that must be resolved at a traverse hearing (see Bevilacqua v. Bloomberg, L.P., 70 A.D.3d 411, 412, 895 N.Y.S.2d 347 [1st Dept. 2010] ).