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Bennett v. St. John's Home

26 N.Y.3d 1033 Court N.Y. Decision date 2015-11-23 English

Judges Concur: Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Fahey; Judge Stein taking no part.

Contents

Majority

p. 1033
[43 NE3d 372, 22 NYS3d 162]
Ainsworth M. Bennett, Individually and on Behalf of the Estate of Virginia R. Bennett, Deceased, Appellant, v St. John’s Home et al., Respondents.
Decided November 23, 2015
APPEARANCES OF COUNSEL
David E. Woodin, LLC, Catskill {David E. Woodin of counsel), for appellant.
Underberg & Kessler LLP, Rochester {David H. Fitch of counsel), for respondents.

OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. As the issue of the timeliness under CPLR 3212 (a)

p. 1034
of defendants’ summary judgment motion was not preserved in Supreme Court, the Court of Appeals lacks power to review either the Appellate Division’s exercise of its discretion to reach the issue, or the issue itself (see Hecker v State of New York, 20 NY3d 1087 [2013]). On the remaining issue presented, the Appellate Division properly held that defendants were entitled to summary judgment.

Concur: Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Fahey; Judge Stein taking no part.

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