| Cancel v Posner |
| 2011 NY Slip Op 02053 [82 AD3d 575] |
| March 22, 2011 |
| Appellate Division, First Department |
| Ramon Cancel, Appellant, v Jonathan Posner et al.,Respondents. |
—[*1] Edward J. Guardaro, Jr., White Plains, for respondents.
Order, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered October 28, 2009,which, to the extent appealed from, granted defendants' motion to dismiss plaintiff's medicalmalpractice cause of action as time-barred, unanimously affirmed, without costs.
It is undisputed that the medical malpractice claim was viable on the date of decedent's deathon June 12, 2006. Pursuant to CPLR 210 (a), plaintiff had until June 12, 2007 to bring the claimon decedent's behalf. Plaintiff did not commence this action until October 2007, four monthsafter the expiration of the statute of limitations. We reject plaintiff's contention that the statute oflimitations should have been tolled while his petition for letters of administration was pending inthe Surrogate's Court (see Wilson v NewYork City Health & Hosps. Corp., 36 AD3d 902, 903 [2007]). Plaintiff filed his petitionon April 23, 2007, 10 months after the decedent's death, and only two months before the statuteof limitations was set to expire on the medical malpractice claim. Plaintiff did not obtain theletters and commence this action until after the expiration of the statute of limitations. Under thecircumstances, there is no statutory remedy for tolling the statute of limitations (cf. Bernardezv City of New York, 100 AD2d 798 [1984]). Concur—Tom, J.P., Andrias, Sweeny,Moskowitz and Renwick, JJ.