| Sullivan v Nimmagadda |
| 2009 NY Slip Op 05109 [63 AD3d 908] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Timothy Sullivan, Appellant, v Phani Nimmagadda,Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Brian J. Greenwood of counsel), forrespondent.
In an action to recover damages for wrongful death and conscious pain and suffering, theplaintiff appeals from a judgment of the Supreme Court, Nassau County (Woodard, J.), datedMay 21, 2008, which, upon an order of the same court dated April 22, 2008, granting thedefendant's motion for summary judgment dismissing the complaint as time-barred, dismissedthe complaint.
Ordered that the judgment is reversed, on the law, with costs, the order is vacated, thedefendant's motion for summary judgment dismissing the complaint as time-barred is denied,and the complaint is reinstated.
The plaintiff commenced a prior action to recover damages for wrongful death and consciouspain and suffering allegedly arising from the medical malpractice of several doctors and anumber of medical facilities. Although the defendant herein was named in the caption of thatprior action, there were no allegations in the complaint of acts or omissions committed by her.The defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint in that prior actioninsofar as asserted against her. The Supreme Court granted the motion and this Court affirmedthe dismissal of the prior action (see Sullivan v St. Francis Hosp., 45 AD3d 833, 834[2007]). The plaintiff commenced this action within six months of the affirmance of thedismissal of the prior action insofar as it related to the defendant (see Lehman Bros. vHughes Hubbard & Reed, 92 NY2d 1014, 1017 [1998]; Andrea v Arnone, Hedin,Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5NY3d 514, 519-520 [2005]).
Contrary to the defendant's contention and the holding of the Supreme Court, the plaintiffwas entitled to the six-month tolling provision of CPLR 205 (a) (see Scaffold-Russ Dilworthv Shared Mgt. Group, 289 AD2d 932, 934 [2001]). "The proviso in CPLR 205 (a) that thetoll is inapplicable when the prior action was dismissed on the merits is essentially a corollary ofthe principle of res judicata that 'once a claim is brought to a final conclusion, all otherclaims arising out of the same transaction or series of transactions are barred' " (YonkersContr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [1999], quoting O'Brienv City of Syracuse, 54 NY2d 353, 357 [1981]). The dismissal of an [*2]action for failure to state a cause of action has limited preclusiveeffect (see 175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 590 n 1[1980]). That limited preclusive effect is not relevant to the facts herein, as the dismissal of theprior action pursuant to CPLR 3211 (a) (7) was not on the merits (see Viafax Corp. vCiticorp Leasing, Inc., 54 AD3d 846, 849-850 [2008]; Tortura v Sullivan Papain BlockMcGrath & Cannavo, P.C., 41 AD3d 584, 585 [2007]; Asgahar v Tringali Realty,Inc., 18 AD3d 408, 409 [2005]). Accordingly, the defendant's motion for summary judgmentdismissing the complaint as time-barred should have been denied. Rivera, J.P., Miller, Balkinand Austin, JJ., concur. [See 2008 NY Slip Op 31322(U).]