        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1040
CA 13-02136
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


DAVID M. HOLMES, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHRISTOPHER MINNAMON, KMMR BUSINESS GROUP INC.
AND FEDEX GROUND PACKAGE SYSTEM, INC.,
DEFENDANTS-RESPONDENTS.


JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (DAVID G. BROCK OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH HANSEN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered August 15, 2013. The order granted the
motion of defendants to dismiss the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the amended complaint is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle he was driving collided with a
vehicle driven by defendant Christopher Minnamon and owned by the two
remaining defendants. We agree with plaintiff that Supreme Court
abused its discretion in granting defendants’ motion seeking dismissal
of the amended complaint based on plaintiff’s failure to comply with a
discovery order. “[I]t is axiomatic that before an order may be
enforced, notice of such order must be given to the party against whom
it is sought to be enforced” (Matter of Raes Pharm. v Perales, 181
AD2d 58, 62). Thus, “[w]here a party’s rights will be affected by an
order, the successful party must serve a copy of the order on the
adverse party in order to give it validity” (Cultural Ctr. Commn. v
Kokoritsis, 103 AD2d 1018, 1018), and the period for compliance with
an order begins to run on the date the order is served upon the
adverse party. Here, the discovery order required that plaintiff
disclose various materials “within forty-five (45) days of this
Order.” The order was served by mail, so an additional five days is
added to the 45-day period set forth in the order (see CPLR
2103 [b] [2]; Pace v Oliver, 204 AD2d 1058, 1058-1059). Plaintiff was
therefore required to comply with the order within 50 days of the date
of service, and defendants moved to dismiss the amended complaint for
failure to comply with the order several days before the expiration of
                                 -2-                          1040
                                                         CA 13-02136

the 50-day period. Thus, defendants’ motion was premature, and the
court erred in granting it (see generally Carpenter v Browning-Ferris
Indus., 307 AD2d 713, 715-716).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
