| Scanzano v Horowitz |
| 2008 NY Slip Op 02823 [49 AD3d 855] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Barbara Scanzano, Appellant, v Stuart Horowitz,Defendant, and Roger Kersten et al., Respondents. |
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In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.),entered March 30, 2007, as, upon reargument, in effect, vacated so much of an order of the samecourt entered November 9, 2006, as denied those branches of the motion of the defendants RogerKersten, Roger Kersten D.O., P.C., and Long Island Cardiology and Internal Medicine whichwere pursuant to CPLR 3211 (a) (5) to dismiss the cause of action to recover damages forwrongful death insofar as asserted against the defendants Roger Kersten and Roger Kersten D.O.,P.C., in its entirety and to dismiss the cause of action to recover damages for wrongful deathinsofar as asserted against the defendant Long Island Cardiology and Internal Medicine in partand thereupon granted those branches of the motion.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, uponreargument, so much of the order entered November 9, 2006, as denied those branches of themotion of the defendants Roger Kersten, Roger Kersten D.O., P.C., and Long Island Cardiologyand Internal Medicine which were pursuant to CPLR 3211 (a) (5) to dismiss the cause of actionto recover damages for wrongful death insofar as asserted against them is adhered to.
The Supreme Court incorrectly concluded that the cause of action to recover damages forwrongful death was time-barred insofar as asserted against the defendants Roger Kersten andRoger Kersten, D.O., P.C. (hereinafter collectively Dr. Kersten), and partially time-barred insofaras asserted against the defendant Long Island Cardiology and Internal Medicine (hereinafterLICIM). [*2]Pursuant to EPTL 5-4.1, a cause of action to recoverdamages for wrongful death may be maintained against persons "who would have been liable tothe decedent by reason of such wrongful conduct if death had not ensued. Such an action must becommenced within two years after the decedent's death." At the time of the decedent's death, thedecedent had a cause of action to recover damages for medical malpractice against Dr. Kerstenand LICIM, which was Dr. Kersten's employer (see Hill v St. Clare's Hosp., 67 NY2d 72,79 [1986]), that was not time-barred (see CPLR 214-a; Murphy v Jacoby, 250AD2d 826 [1998]; Suarez v Phelps Mem. Hosp. Assn., 130 AD2d 571 [1987];Marlowe v DuPont deNemours & Co., 112 AD2d 769, 771 [1985]). Furthermore, theplaintiff, who is the decedent's widow and personal representative, asserted the cause of actionagainst Dr. Kersten and LICIM within two years after the decedent's death (see EPTL5-4.1 [1]). Accordingly, upon reargument, the Supreme Court should have adhered to the priordetermination denying those branches of the motion of Dr. Kersten and LICIM which were todismiss the cause of action to recover damages for wrongful death insofar as asserted againstthem. Mastro, J.P., Covello, Eng and Belen, JJ., concur.