| Jennings-Purnell v Jennings |
| 2013 NY Slip Op 04446 [107 AD3d 513] |
| June 13, 2013 |
| Appellate Division, First Department |
| Ann Jennings-Purnell, M.D., Appellant, v Eric C.Jennings et al., Defendants, and Richard W. Donner, Respondent. (And a Third-PartyAction.) |
—[*1] L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Kimberly JohnsonGlenn of counsel), for respondent.
Judgment, Supreme Court, New York County (Milton A. Tingling, J.), enteredFebruary 7, 2012, dismissing the amended complaint as against defendant Richard W.Donner, and bringing up for review an order and amended order, same court and Justice,entered November 21, 2011 and January 10, 2012, respectively, which granteddefendant's motion to dismiss the amended complaint as against him, unanimouslyreversed, on the law, without costs, the judgment vacated, the motion denied, and thecomplaint reinstated as against defendant Donner. Appeals from the aforesaid orders,unanimously dismissed, without costs, as subsumed in the appeal from the judgment.Appeal from order, same court and Justice, entered April 18, 2012, which deniedplaintiff's motion to, among other things, vacate a prior order striking her motion toamend her amended complaint, unanimously dismissed, without costs, as moot.
Plaintiff's amended complaint, as supplemented by her affidavit in opposition to themotion to dismiss, stated a claim against defendant for notarial misconduct. Accordingly,the court should have denied the motion to dismiss the amended complaint (seeEmbee Advice Establishment v Holtzmann, Wise & Shepard, 191 AD2d 194 [1stDept 1993]).
In light of the foregoing determination, the appeal from the order denying plaintiff'smotion to vacate a prior order striking her motion to interpose a second amendedcomplaint is moot. In any event, the motion should have been granted, as there is nodispute that plaintiff's counsel had a meritorious excuse for missing the argument date onthe motion for leave to amend (see CPLR 5015 [a] [1]). Further, the proposedpleading sufficiently stated a claim for notarial misconduct. It also related back to theprior amended complaint for the purposes of the statute of [*2]limitations. While the prior amended complaint did notmention notarial misconduct, it clearly gave notice to defendant of the transaction andoccurrence in which the notarial misconduct took place (see CPLR 203 [f]).Concur—Acosta, J.P., Saxe, Renwick, Richter and Clark, JJ.