Biton v Baxter Healthcare Corp.

Biton v Baxter Healthcare Corp. 2012 NY Slip Op 06567 Decided on October 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 2, 2012
Friedman, J.P., Acosta, Renwick, Richter, Abdus-Salaam, JJ. 8166N-
8166NA 103927/98

[*1]Crystal Biton, Plaintiff-Appellant,

v

Baxter Healthcare Corporation, et al., Defendants-Respondents.




Crystal Biton, appellant pro se.
Sidley Austin LLP, New York (Maria D. Melendez of counsel),
for respondents.

Appeal from order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 17, 2011, which denied plaintiff's motion to restore this action to the trial calendar, and order, same court and Justice, entered October 25, 2011, which denied plaintiff's motion to reargue and renew, unanimously dismissed, without costs. The Clerks of Supreme Court, New York and Bronx Counties, and the Clerk of this Court are directed to accept no filings from plaintiff, as against defendants, with respect to matters pertaining to her alleged personal injury arising from silicone breast implants, related claims arising therefrom, or the settlement agreement relating thereto, without the prior leave of their respective courts.

Having served the orders and notice of entry upon defendants by mail on October 27, 2011, plaintiff had until December 1, 2011 to file a notice of appeal, i.e., 35 days later (CPLR 5513[a], [d]). Since she did not file a notice of appeal until December 7, 2011, the appeal must be dismissed (see Retta v 160 Water St. Assoc., L.P., 94 AD3d 623 [1st Dept 2012]). In addition, the order entered October 25, 2011 is not appealable as of right under CPLR 5701(a) because it did not resolve a motion made upon notice (see Kalyanaram v New York Inst. of Tech., 91 AD3d 532 [1st Dept 2012]).

Were we to reach the merits, we would find that plaintiff's motion to restore was properly denied. After a delay of nearly 11 years, plaintiff failed to identify the allegedly "newly discovered" evidence upon which her motion was based.

We find that an injunction is warranted, in view of plaintiff's demonstrated proclivity for frivolous litigation and the vexatious nature of this litigation, as demonstrated by plaintiff's own submissions.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2012 [*2]

CLERK