| Rumola v Maimonides Med. Ctr. |
| 2011 NY Slip Op 07211 [88 AD3d 781] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Dawn Rumola, as Proposed Administrator of the Estate of ThomasSharp, Deceased, Appellant, v Maimonides Medical Center,Respondent. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner andJudy C. Selmeci of counsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from anorder of the Supreme Court, Kings County (Dabiri, J.), dated November 21, 2008, which grantedthat branch of the defendant's motion which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as barred by the statute of limitations.
Ordered that the order is affirmed, with costs.
In 1998, Anna Rumola, as administratrix of the estate of Thomas Sharp, commenced anaction against the defendant. On November 16, 1999, Anna Rumola died. In 2007 the SupremeCourt granted the defendant's motion pursuant to CPLR 1021 to dismiss the action "withprejudice" due to the failure of the persons interested in the decedent's estate to move for asubstitution within a reasonable time. Dawn Rumola, as "Proposed Administrator of the Estate ofThomas Sharp," subsequently commenced this action based on the same transactions andoccurrences as those in the prior action.
The Supreme Court properly granted that branch of the defendant's motion which waspursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the statute of limitations.Under the circumstances of this case, the dismissal of the prior action was for "neglect toprosecute," rendering the exception to the statute of limitations in CPLR 205 (a) unavailable tothe plaintiff (see Andrea v Arnone,Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [HabiterraAssoc.], 5 NY3d 514, 520 [2005]; Flans v Federal Ins. Co., 43 NY2d 881, 882[1978]; Bauer v Mars Assoc., 35AD3d 333, 334 [2006]; cf.Freedman v New York Hosp. Med. Ctr. of Queens, 9 AD3d 415 [2004]).
In light of our determination, we need not reach the defendant's remaining contention.Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.