NUNEZ v. COUNTY OF NASSAU (1999)

Supreme Court, Appellate Division, Second Department, New York.

Ceferina NUNEZ, respondent, v. COUNTY OF NASSAU, et al., appellants.

Decided: October 04, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN and NANCY E. SMITH, JJ.

Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Laurence G. McDonnell of counsel), for appellants.

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated October 22, 1998, which granted their motion to dismiss the complaint as abandoned pursuant to CPLR 3404 only on condition that the plaintiff fail to file a note of issue within 14 days.

ORDERED that the order is reversed, with costs, the motion to dismiss is denied, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment dismissing the complaint pursuant to CPLR 3404.

The defendants' motion to dismiss the complaint was unnecessary since an action that is not restored within one year of the date it was marked off the calendar is automatically dismissed (see, Lee v. Chion, 213 A.D.2d 602, 623 N.Y.S.2d 927). Accordingly, the motion is denied as unnecessary, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment dismissing the complaint pursuant to CPLR 3404.

MEMORANDUM BY THE COURT.

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