Toomer v Carr (2009 NY Slip Op 50734(U))

Toomer v Carr

2009 NY Slip Op 50734(U) [23 Misc 3d 132(A)]

Decided on April 16, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Joie Toomer, an infant by her mother and natural guardian, JEANETTE CARR, and JEANETTE CARR, Individually, Respondents,

against

Tina Carr and LOUIS CARR, Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), dated December 1, 2004. The order, insofar as appealed from as limited by the brief, denied defendants' motion to dismiss the complaint.

Defendants moved to dismiss the complaint, pursuant to CPLR 3126, due to plaintiffs' failure to comply with discovery demands or, in the alternative, to compel plaintiffs to respond to said demands. No opposition papers were filed by plaintiffs. By order dated January 6, 2004, the court (Alice Fisher Rubin, J.) stated, inter alia, that "Plaintiffs' attorney within 90 days from today shall either locate Plaintiffs' present address(es) or move to withdraw as attorney in this matter or this action is dismissed." By notice of motion returnable in September 2004, defendants moved, inter alia, to dismiss the complaint with prejudice. Thereafter, by order dated December 1, 2004, the court (Eileen Nadelson, J.) denied defendants' "motion to dismiss for failure to comply," accepted plaintiffs' attorney's submission of plaintiffs' current address, and directed defendants to notice an independent medical examination of plaintiffs and have plaintiffs appear for said examination. The instant appeal by defendants ensued.

On appeal, defendants contend that the complaint should have been dismissed and the court below, by its December 2004 order, acted beyond its jurisdiction when it modified the January 2004 order of a court of coordinate jurisdiction. We find no merit to these contentions. Pursuant to the January order, plaintiffs' attorney was directed to "locate" plaintiffs' current address within 90 days. The order did not direct plaintiffs' attorney to provide the address to any specified person or entity within this time period, and the record on appeal does not indicate that the address was not located by the attorney within the applicable time frame. Consequently, the [*2]court below acted well within its discretion, in its December order, when it accepted plaintiffs' attorney's submission of plaintiffs' address and denied so much of defendants' motion which sought dismissal of the complaint. The December order clearly did not reverse, overrule or modify any matter already decided by the January order (cf. DeLanoy v O'Rourke, 276 AD2d 728 [2000]). Accordingly, the order, insofar as appealed from, is affirmed.