| Snodgrass v Professional Radiology |
| 2008 NY Slip Op 03443 [50 AD3d 883] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Randall Snodgrass, Appellant, v Professional Radiology etal., Respondents, et al., Defendants. |
—[*1] Belair & Evans, LLP, New York, N.Y. (James B. Reich of counsel), for respondentProfessional Radiology Service. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner andPatrick J. Lawless of counsel), for respondent John Louis Romanelli.
In an action to recover damages for wrongful death and medical malpractice, the plaintiffappeals from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated February 6,2007, which granted the motion of the defendant Professional Radiology, and the separatemotion of the defendant John Louis Romanelli, to dismiss the complaint insofar as assertedagainst each of them on the grounds of the statute of limitations and res judicata, and (2) so muchof an order of the same court, dated September 17, 2007, as, upon reargument, adhered to itsprior determination, albeit on the ground that there had been a neglect to prosecute by theplaintiff.
Ordered that the appeal from the order dated February 6, 2007 is dismissed, as that order wassuperseded by the order dated September 17, 2007, made upon reargument; and it is further,
Ordered that the order dated September 17, 2007 is reversed insofar as appealed from, on thelaw, and upon reargument, the order dated February 26, 2007 is vacated and the respondents'separate motions to dismiss are denied; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, denominated as a "proposed administrator" of the estate of Beverly GainesSnodgrass, commenced an action in September 2002 to recover damages for wrongful death andmedical malpractice (hereinafter the original action). There was no one with capacity to sue untilletters of administration were issued to the plaintiff in February 2005. At that time, the plaintiffmoved to amend the caption of the original action and to restore the matter to the active calendar.All three defendants separately moved to dismiss the complaint in the original action on a varietyof grounds, including lack of capacity, the statute of limitations, and failure to timely substitute aproper representative of the estate pursuant to CPLR 1021. The Supreme Court denied theplaintiff's motion and granted all three motions to dismiss. The order of dismissal did not specifythe ground or grounds for the dismissal. The court did not state that the dismissal was on themerits or that it was with prejudice.
The plaintiff promptly recommenced the instant action pursuant to CPLR 205 (a). Thedefendants Professional Radiology and John Louis Romanelli (hereinafter the respondents) thenmoved to dismiss this action, primarily on the ground that since the original action had beendismissed on statute of limitations grounds, the issue of timeliness was res judicata, and thus theinstant action was also time-barred. The Supreme Court granted the motions to dismiss on theground the original action had been dismissed on statute of limitations grounds and, as thatdetermination was res judicata, the benefit of CPLR 205 (a) was unavailable to the plaintiff.
The plaintiff moved for leave to reargue the motions to dismiss. The Supreme Court grantedthe motion for leave to reargue and, upon reargument, adhered to its determination dismissing thecomplaint insofar as asserted against the respondents, albeit on a different ground. Onreargument, the Supreme Court premised the dismissal of the complaint on an alternative groundadvanced by the respondents, that the dismissal of the original action was the result of theplaintiff's neglect to prosecute.
Insofar as the issue involves whether the six-month extension provision of CPLR 205 (a)applies, the original action was timely commenced, notwithstanding the lack of capacity of theplaintiff to pursue the claims prior to the issuance of the letters of administration (see Carrickv Central Gen. Hosp., 51 NY2d 242, 252 [1980]; see also Lambert v Sklar, 30 AD3d 564 [2006]; Mendez v Kyung Yoo, 23 AD3d354 [2005]; Freedman v New YorkHosp. Med. Ctr. of Queens, 9 AD3d 415 [2004]). Therefore, the dismissal of theoriginal action was not on the merits.
The only basis for the Supreme Court's determination, on reargument, to dismiss thecomplaint was neglect to prosecute. However, there was delay in the plaintiff's efforts to obtainthe letters of administration. Once the letters were issued, the plaintiff moved expeditiously toamend the caption to reflect his capacity and to restore the action to the active calendar. Thedefendants, who had engaged in some discovery in the original action, did not show the existenceof any specific prejudice from the delay. As a matter of law, the delay in this case did notconstitute neglect to prosecute (cf.Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C.[Habiterra Assoc.], 5 NY3d 514 [2005]; Bauer v Mars Assoc., 35 AD3d 333 [2006]; McDonnell v Draizin, 24 AD3d628 [2005]).
Since the plaintiff was entitled to the benefit of the six-month extension provision of CPLR205 (a) the instant action was timely commenced. Skelos, J.P., Angiolillo, Leventhal and Belen,JJ., concur.