| Baron v Brown |
| 2012 NY Slip Op 08675 [101 AD3d 915] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Kathleen Baron, as Administratrix of the Estate of Amy RyanBaron, Deceased, Appellant, v Howard Brown et al., Defendants, and JaniceMcCormack et al., Respondents. |
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In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court,Suffolk County (Molia, J.), dated June 13, 2011, as, sua sponte, in effect, directed the dismissal,as time-barred, of the cause of action alleging wrongful death insofar as asserted against thedefendants Janice McCormack and South Bay Cardiovascular Associates, P.C.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedJune 13, 2011, as, sua sponte, in effect, directed the dismissal, as time-barred, of the cause ofaction alleging wrongful death insofar as asserted against the defendants Janice McCormack andSouth Bay Cardiovascular Associates, P.C., is deemed to be an application for leave to appealfrom that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and itis further,
Ordered that the order dated June 13, 2011, is reversed insofar as appealed from, on the law,with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a determinationon the merits of the pending motion of the defendants Janice McCormack and South BayCardiovascular Associates, P.C., inter alia, for summary judgment dismissing the cause of actionalleging wrongful death insofar as asserted against them.
The plaintiff's decedent died on June 9, 2005. The plaintiff commenced this action, inter alia,to recover damages for medical malpractice and wrongful death, etc., on May 24, 2007, against,among others, the defendants Janice McCormack and South Bay Cardiovascular Associates, P.C.(hereinafter together the South Bay defendants). Although the South Bay defendants raised theissue of the statute of limitations in their answer, they moved, inter alia, for summary judgmentdismissing the cause of action alleging wrongful death insofar as asserted against them on theground that they did not depart from accepted medical practice in treating the decedent. TheSupreme Court, sua sponte, in effect, directed the dismissal of the wrongful death cause of actioninsofar as asserted against the South Bay defendants on the ground that it was time-barred, anddenied their motion for summary judgment as academic.
On a motion for summary judgment, the court is limited to the issues or defenses that are thesubject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425,429-[*2]430 [1996]; Quizhpe v Luvin Constr., 70 AD3d 912, 914 [2010]). Therefore,the Supreme Court erred in deciding the matter based upon the statute of limitations. In anyevent, the cause of action alleging wrongful death was timely commenced within two years of thedecedent's death, since, at the time of her death, her cause of action sounding in medicalmalpractice was not time-barred (see EPTL 5-4.1 [1]; Venditti v St. Catherine of Siena Med. Ctr., 98 AD3d 1035 [2012];Mikus v Rosell, 62 AD3d 674,675 [2009]; Scanzano v Horowitz,49 AD3d 855, 856 [2008]; Norum vLandau, 22 AD3d 650, 651 [2005]; Murphy v Jacoby, 250 AD2d 826 [1998]).The statute of limitations for medical malpractice causes of action (see CPLR 214-a) wasextended by the infancy toll until two years and six months after the decedent's 18th birthday inJanuary 2003, to wit, until July 2005 (see CPLR 208; Henry v City of New York,94 NY2d 275 [1999]; Yang v OceansideUnion Free School Dist., 90 AD3d 649 [2011]). Since, at the time of her death in June2005, the decedent had a valid cause of action to recover damages for medical malpractice, andthe cause of action alleging wrongful death was asserted within two years of the date of herdeath, the cause of action alleging wrongful death was timely interposed (see EPTL 5-4.1[1]; Venditti v St. Catherine of SienaMed. Ctr., 98 AD3d 1035 [2012]; Mikus v Rosell, 62 AD3d at 675;Scanzano v Horowitz, 49 AD3d at 856; Norum v Landau, 22 AD3d at 651;Murphy v Jacoby, 250 AD2d 826 [1998]).
As the Supreme Court denied the South Bay defendants' motion for summary judgment asacademic, we remit the matter to the Supreme Court, Suffolk County, for a determination of thatmotion on the merits (see Gosine vSahabir, 91 AD3d 910, 911 [2012]; Hluch v Ski Windham Operating Corp., 85 AD3d 861, 864 [2011];Hunter Sports Shooting Grounds, Inc. vFoley, 73 AD3d 702 [2010]). Rivera, J.P., Balkin, Leventhal and Hinds-Radix, JJ.,concur. [Prior Case History: 2011 NY Slip Op 31617(U).]