VERNA HOBBINS, res-ap, v. NORTH STAR ORTHOPEDICS, PLLC def, PAUL ACKERMAN, ETC., APPELLANT-res — (INDEX NO. 2934/11)In an action, inter alia, to recover damages for medical malpractice, the defendant Paul Ackerman appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Sweeney, J.), dated January 21, 2015, as, in effect, denied his motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him and granted the plaintiff’s motion pursuant to CPLR 306-b for an extension of time to serve the summons and complaint upon him, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as (1) granted the separate motion of the defendant Paul Ackerman to vacate so much of an order of the same court dated August 14, 2013, as marked off the calendar his motion to dismiss the complaint insofar as asserted against him, and thereupon to restore his motion to the calendar, (2) granted that branch of the separate motion of the defendant Paul Ackerman which was to confirm a referee’s report (Archer, Ct. Atty. Ref.) dated December 23, 2013, determining that service upon him was defective, and (3), in effect, upon reargument, adhered to a determination in an order of the same court dated May 28, 2012, denying that branch of her prior motion which was for leave to enter a default judgment against the defendant Paul Ackerman, and denied, as academic, that branch of her motion which was for leave to renew her prior motion for leave to enter a default judgment against that defendant given that the service on him was determined to be defective.
ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof, in effect, denying the motion of the defendant Paul Ackerman pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, and substituting therefor a provision granting that motion, and (2) by deleting the provision thereof granting the plaintiff’s motion pursuant to CPLR 306-b for an extension of time to serve the summons and complaint upon the defendant Paul Ackerman, and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant Paul Ackerman.
