| Brown v Lutheran Med. Ctr. |
| 2013 NY Slip Op 04568 [107 AD3d 837] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Anthony Brown, Individually and as Administrator of theEstate of Sharline Orlinda Brown, Deceased, Respondent, v Lutheran MedicalCenter et al., Appellants. |
—[*1] Vaslas Lepowsky Hauss & Danke, LLP, Staten Island, N.Y. (Ida A. Caputo ofcounsel), for appellant Maimonides Medical Center. Joseph M. Lichtenstein, P.C., Mineola, N.Y., for respondents.
In an action to recover damages for medical malpractice and wrongful death, etc., thedefendants, Lutheran Medical Center and Maimonides Medical Center, separatelyappeal, as limited by their respective briefs, from so much of an order of the SupremeCourt, Kings County (Knipel, J.), dated February 6, 2012, as granted those branches ofthe plaintiff's motion which were to strike certain affirmative defenses asserted in theirrespective answers.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In March 2007, the plaintiff's wife, Sharline Brown, allegedly sustained injuries as aresult of the defendants' medical malpractice. In July 2009, the plaintiff commenced anaction (hereinafter the first action) individually and as proposed guardian ad litem forSharline, seeking to recover, inter alia, damages for medical malpractice. While the firstaction was pending, Sharline died. More than a year later, and prior to any substitution ofher estate as plaintiff, the Supreme Court dismissed the first action. The dismissal wasdenominated as being "with prejudice." Subsequently, the plaintiff was appointed asadministrator of Sharline's estate, and, within six months after the first action wasdismissed, he commenced the present action, as administrator and individually. In thepresent action, the plaintiff alleged a cause of action to recover damages for wrongfuldeath in addition to the causes of action asserted in the first action. After the defendantsseparately answered the complaint, the plaintiff moved to dismiss their affirmativedefenses of res judicata, collateral estoppel, and the statute of limitations, and theaffirmative defense, asserted only by the defendant Maimonides Medical Center(hereinafter Maimonides), of laches. The Supreme Court granted the plaintiff's motion,and the defendants separately appeal.
The record makes clear that, notwithstanding its denomination of the dismissal of thefirst action as "with prejudice," the Supreme Court did not intend to preclude the plaintifffrom commencing a new action once he acquired the capacity to sue, which hepurportedly lacked when he commenced the first action (see CPLR 3211 [a] [3]).Consequently, as the Supreme Court stated [*2]in theorder appealed from, the dismissal of the first action was not a final judgment on themerits and it was not preclusive, under either res judicata or collateral estoppel, of claimsor issues in the present action (cf. Yonkers Contr. Co. v Port Auth. Trans-HudsonCorp., 93 NY2d 375, 379-380 [1999]). Thus, the court properly granted that branchof the plaintiff's motion which was to dismiss the affirmative defenses of res judicata andcollateral estoppel.
The Supreme Court also properly granted that branch of the plaintiff's motion whichwas to dismiss the affirmative defense of the statute of limitations, inasmuch as theplaintiff was entitled to the six-month extension of the statute of limitations providedunder CPLR 205 (a) (see Carrick v Central Gen. Hosp., 51 NY2d 242, 249[1980]; George v Mt. Sinai Hosp., 47 NY2d 170, 174-175 [1979]; Egan v Neghavi, 84 AD3d1014, 1014 [2011]).
Finally, the Supreme Court properly granted that branch of the plaintiff's motionwhich was to dismiss Maimonides' affirmative defense of laches. In opposition to theplaintiff's showing as to the lack of prejudice to Maimonides from any delay in theappointment of a proper party to assert Sharline's claims (see Dwyer v Mazzola,171 AD2d 726, 727 [1991]), Maimonides failed to demonstrate the possibility ofprejudice from that delay (see Rosenfeld v Rosenblum, 176 AD2d 645, 646[1991]; cf. Galasso, Langione &Botter, LLP v Liotti, 81 AD3d 880, 882-883 [2011]). Balkin, J.P., Leventhal,Lott and Sgroi, JJ., concur. [Prior Case History: 35 Misc 3d 553.]