Juliette DeJoie Cadichon v. Thomas Facelle M.D.
Annotate this Case
Download PDF
=================================================================
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------Motion No. 2010-969
Juliette DeJoie Cadichon, et al.,
Appellants,
v.
Thomas Facelle M.D., et al.,
Respondents.
MEMORANDUM:
The motion, insofar as it seeks leave to appeal from
that portion of the Appellate Division order that affirmed the
August 26, 2008 Supreme Court order, treated as a motion for
reconsideration of so much of this Court's July 1, 2010 order as
- 1 -
- 2 -
Mot. No. 969
dismissed plaintiffs' appeal as of right from that portion of the
Appellate Division order, should be granted, and, upon
reconsideration, jurisdiction of so much of the appeal should be
retained.
The motion, insofar as it seeks leave to appeal from
the above-recited part of the Appellate Division order should be
dismissed as unnecessary.
The motion, insofar as it seeks leave
to appeal from the remainder of the Appellate Division order
should be dismissed upon the ground that it does not finally
determine the action within the meaning of the Constitution.
The
motion, insofar as it seeks leave to appeal from the amended
judgment of Supreme Court pursuant to CPLR 5602(a)(1)(ii), should
be dismissed upon the ground that the portion of the Appellate
Division order that affirmed the August 26, 2008 Supreme Court
order is a final appealable paper from which an appeal was
properly taken (see CPLR 5611).
The appeal from the amended
judgment should be dismissed without costs, by the Court, on its
own motion, upon the ground that the portion of the Appellate
Division order that affirmed the August 26, 2008 Supreme Court
order is a final appealable paper from which an appeal was
properly taken (see CPLR 5611).
In considering the finality limitation on its
jurisdiction, this Court has consistently treated the automatic
dismissal of an action pursuant to CPLR 3404, or pursuant to
other statutes or court rules, as a final determination and it
has treated any subsequent order denying a motion to vacate the
- 2 -
- 3 -
Mot. No. 969
dismissal as a nonfinal determination (see, e.g., Paglia v
Agrawal, lv dismissed 69 NY2d 946 [1987]).
Accordingly, reading
Supreme Court's order pursuant to CPLR 3216 in this case as
providing that the complaint would be dismissed automatically
upon plaintiffs' failure to file a note of issue by the date
specified in the order, the Court dismissed for nonfinality the
part of the appeal taken from the order affirming the denial of
the motion to vacate (15 NY3d 767).
Upon reconsideration, it is
recognized that Supreme Court's order is ambiguous as to whether
it mandated a dismissal without further court order.
Where, as
here, it is not clear that the action was automatically dismissed
by operation of statute, rule or court order, the order denying
the motion to vacate shall be deemed the final appealable paper
for purposes of this Court's jurisdiction.
As the Appellate
Division order denying the motion to vacate had a two-justice
dissent on a question of law, an appeal as of right pursuant to
CPLR 5601(a) properly lies.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith,
Pigott and Jones concur.
Decided October 26, 2010
- 3 -
*
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
