Ubriaco v. John T. Mather Memorial Hospital

Full title: MICHAEL UBRIACO et al., Respondents, v. JOHN T. MATHER MEMORIAL HOSPITAL…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 7, 1994

209 A.D.2d 404 (N.Y. App. Div. 1994)

619 N.Y.S.2d 577

Opinion

November 7, 1994

Appeal from the Supreme Court, Suffolk County (Cohalan, J.).

Ordered that the order is affirmed, with costs.

Since the appellant failed to serve his own written demand to the plaintiffs under CPLR 3216 to resume prosecution of the action, the action could not have been dismissed against the appellant (see, CPLR 3216 [b] [3]; Juracka v. Ferrara, 137 A.D.2d 921, 923; Seidman v. Shames, 130 A.D.2d 568; Fichera v City of New York, 79 A.D.2d 597). The court also properly exercised its discretion in imposing costs and sanctions upon the appellant pursuant to 22 NYCRR 130-1.1, due to his making a frivolous motion. Mangano, P.J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.