Opinion
923 CA 22-00828
02-03-2023
Renee V. SLOMBA, Plaintiff-Respondent, v. Kristan E. KLEPP, Defendant-Appellant.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (DONNA L. BURDEN OF COUNSEL), FOR DEFENDANT-APPELLANT. THE JOY E. MISERENDINO LAW FIRM, P.C., ORCHARD PARK (JOY E. MISERENDINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (DONNA L. BURDEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE JOY E. MISERENDINO LAW FIRM, P.C., ORCHARD PARK (JOY E. MISERENDINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this personal injury action arising from a motor vehicle accident, defendant moved to dismiss the complaint on the ground that plaintiff was required, and failed, to serve a notice of claim pursuant to General Municipal Law § 50-e (1) (b). Defendant appeals from an order that denied her motion. Contrary to defendant's contention, we conclude that Supreme Court did not abuse its discretion in denying the motion without prejudice to renew after limited discovery on the issue whether plaintiff was required to serve a notice of claim (see CPLR 3211 [d] ; Gonzalez-Doldan v. Kaleida Health, Inc. , 160 A.D.3d 1384, 1384, 72 N.Y.S.3d 870 [4th Dept. 2018] ; see generally Herzog v. Town of Thompson , 216 A.D.2d 801, 803, 628 N.Y.S.2d 869 [3d Dept. 1995] ).