Zulic v. Persich

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 24, 2012, as granted those branches of the defendants’ separate motions which were to dismiss the complaint pursuant to CPLR 3211 (a) (5), and [905] denied, as academic, the plaintiffs’ cross motion for leave to file late proofs of service. Ordered that the order is affirmed insofar as appealed from, with one bill of costs. The Supreme Court properly determined that its prior dismissal of a similar action between the parties was based on the plaintiffs’ neglect to prosecute, and the prior order of dismissal adequately set forth the plaintiffs’ conduct constituting the neglect and demonstrating a general pattern of delay in proceeding (see CPLR 205 [a]). Accordingly, the plaintiffs were not entitled to invoke the six-month savings provision set forth in CPLR 205 (a), and the Supreme Court properly directed that the complaint in the instant action be dismissed as time-barred (see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519-520 [2005]; Santiago v City of New York, 77 AD3d 561 [2010]; Ivory v Ekstrom, 98 AD2d 763, 764 [1983]). Furthermore, in light of this determination, the plaintiffs’ cross motion for leave to file late proofs of service was correctly denied as academic. In view of the foregoing, we need not reach the parties’ remaining contentions. Mastro, J.E, Rivera, Sgroi and Cohen, JJ., concur.