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SIMON v. USHER

No. 172.

17 N.Y.3d 625 (2011)

958 N.E.2d 540

934 N.Y.S.2d 362

2011 NY Slip Op 7305

ALLEN SIMON et al., Respondents, v. SOL M. USHER et al., Appellants, and SHELDON ALTER et al., Respondents.

Court of Appeals of New York.

Decided October 20, 2011.

Attorney(s) appearing for the Case

Kopff, Nardelli & Dopf LLP, New York City ( Martin B. Adams of counsel), for appellants.

Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York City ( Howard S. Hershenhorn and Rhonda E. Kay of counsel), for Allen Simon and another, respondents.

Rende, Ryan & Downes, LLP, White Plains ( Roland T. Koke of counsel), for Sheldon Alter and others, respondents.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ and SMITH concur with Judge JONES; Judge PIGOTT dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

JONES, J.

The question presented for our review is whether the five-day extension under CPLR 2103 (b) (2) applies to the 15-day time period prescribed by CPLR 511 (b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical malpractice action against defendants in Supreme Court, Bronx County. Defendants...

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