# Ferran v. Board of Education

> Appellate Division of the Supreme Court of the State of New York · July 20, 1995 · 217 A.D.2d 822

URL: https://www.frixlaw.com/law-library/cases/5992286

## Case

- **Full name:** Nadia Ferran, as Parent and Natural Guardian of Laura Ferran, an Infant v. Board of Education of the City of Albany
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 20, 1995
- **Citations:** 217 A.D.2d 822; 629 N.Y.S.2d 546; 1995 N.Y. App. Div. LEXIS 7870
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Yesawich
- **Judges:** Yesawich
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5992286

## Opinion text

Yesawich Jr., J.
Appeal from an order of the Supreme Court (Keegan, J.), entered March 14, 1994 in Albany County, which granted defendant’s motion to dismiss the complaint.
Though directed by Supreme Court to do so, and having had some four months to accomplish it, plaintiff failed to secure substitute counsel so that this personal injury action could be restored to the trial calendar. This directive was prompted by the fact that, in April 1993, plaintiff’s then-counsel had withdrawn from the case on the eve of trial. In these circumstances, the court cannot be faulted for having granted defendant’s motion to dismiss the complaint (see, CPLR 3216 [d]; Holley v Mandate Realty Corp., 121 AD2d 202, 206 , affd 69 NY2d 721 ; cf., Headley v Noto, 22 NY2d 1, 4 ). It bears noting, however, that there being no explicit declaration to the contrary (compare, Jones v Maphey, 50 NY2d 971, 973 ), a dismissal of this sort is not considered to be on the merits and does not preclude commencement of a new action within the applicable Statute of Limitations (see, CPLR 3216 [a]; Holley v Mandate *823 Realty Corp., supra, at 204), if the same has not yet expired (see, CPLR 208; McGill v Board of Educ., 59 AD2d 888, 888-889 , appeal dismissed 43 NY2d 893 , 949).
Mikoll, J. P., Crew III, White and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5992286. Public record. Not legal advice.