Coakley v. Southside Hospital , 601 N.Y.S.2d 190 ( 1993 )

In an action to recover damages for medical malpractice, the defendant Stuart N. Kandel appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 22, 1990, which granted the plaintiffs’ motion to vacate a prior order of the same court dated March 6, 1990, granting the appellant’s cross motion to dismiss the complaint insofar as it is asserted against him for failure to a file certificate of merit, and denied his cross motion to dismiss the complaint.

Ordered that the order dated August 22, 1990, is reversed, on the law and as a matter of discretion in the interest of justice, with costs, the motion is denied, and the order dated March 6, 1990, is reinstated.

The plaintiffs had two separate opportunities to submit opposition to the appellant’s cross motion to dismiss and failed to do so. That the appellant’s application was made by cross motion rather than by motion in the first instance was immaterial (see, CPLR 2215). Accordingly, the Supreme Court improperly vacated its prior order dismissing the complaint insofar as it is asserted against the appellant. Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.