| Egan v Neghavi |
| 2011 NY Slip Op 04196 [84 AD3d 1014] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Michael Egan, Appellant, v Reza Neghavi et al.,Respondents. |
—[*1] Santangelo, Benvenuto & Slattery (James W. Tuffin, Roslyn, N.Y. [Gabriel Mignella], ofcounsel), for respondents Reza Neghavi amd Hildy Saperstein. Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Jeffrey A. Learn of counsel), forrespondents Leslie King and Obstetrics and Gynecological Services of Rockville Centre,P.C.
In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals from a judgment of the Supreme Court, Nassau County (Martin, J.), dated November 10,2009, which, upon an order of the same court entered January 21, 2009, granting the separatemotions of the defendants Reza Naghavi and Hildy Saperstein, the defendants Leslie King andObstetrics and Gynecological Services of Rockville Centre, P.C., and the defendant SouthNassau Communities Hospital Oceanside New York, to dismiss the complaint insofar as assertedagainst each of them based upon lack of capacity to sue, is in favor of the defendants and againsthim dismissing the complaint without prejudice.
Ordered that the judgment is affirmed, with one bill of costs payable to the defendantsappearing separately and filing separate briefs.
The plaintiff commenced this action to recover damages for medical malpractice andwrongful death on behalf of the decedent, his wife, prior to obtaining letters of administration.The defendants moved to dismiss the complaint with prejudice on the ground that he lacked legalcapacity to sue. The Supreme Court dismissed the action without prejudice to the commencementof a new action pursuant to CPLR 205 (a). On appeal, the plaintiff contends that, since heultimately obtained limited letters of administration, the Supreme Court should have granted himleave to amend the caption and complaint instead of dismissing the action. However, the plaintiffdid not cross-move or even request such relief in his opposing papers and submitted only expiredletters of administration. Under the circumstances, the Supreme Court properly dismissed thecomplaint without prejudice (see Carrick v Central Gen. Hosp., 51 NY2d 242 [1980];George v Mt. Sinai Hosp., 47 NY2d 170 [1979]; Mendez v Kyung Yoo, 23 AD3d 354 [2005]; Krainski vSullivan, 208 AD2d 904 [1994]; Ballav v Deepdale Gen. Hosp., 196 AD2d 520[1993]). Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.