Guerrera v Zysk

Guerrera v Zysk 2012 NY Slip Op 06578 Decided on October 3, 2012 Appellate Division, Second 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 3, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
ARIEL E. BELEN
LEONARD B. AUSTIN, JJ.
2011-10355
(Index No. 39592/07)

[*1]Salvatore Guerrera, respondent,

v

Robert J. Zysk, appellant.




Robert J. Zysk, Patchogue, N.Y., appellant pro se.
Jeffrey Levitt, Massapequa, N.Y., for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated September 1, 2011, as denied that branch of his motion which was pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On May 5, 2010, the defendant served the plaintiff with a written demand pursuant to CPLR 3216 to serve and file a note of issue within 90 days after receipt of the demand. Shortly thereafter, the defendant served a notice of motion dated May 5, 2010, inter alia, pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute. Since the defendant's motion was served before the expiration of the 90-day period, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3216, in effect, to dismiss the complaint (see Weber v Kessler, 224 AD2d 520, 521; Divjak v New York Hosp.-Cornell Med. Ctr., 219 AD2d 695; Lyons v Butler, 134 AD2d 576).

The defendant's remaining contentions are without merit.
DILLON, J.P., BALKIN, BELEN and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court