Ross v Jamaica Hosp. Med. Ctr.

2014 NY Slip Op 07490 [122 AD3d 607]

November 5, 2014

Appellate Division, Second Department

As corrected through Wednesday, December 31, 2014

[*1]

Steven W. Ross, Appellant, v Jamaica HospitalMedical Center et al., Respondents.

Douglas A. Emanuel, South Salem, N.Y., for appellant.

Martin Clearwater & Bell, LLP, New York, N.Y. (Stewart G. Milch, ThomasA. Mobilia, Jacqueline D. Berger, and Iryna Krauchanka of counsel), for respondentJamaica Hospital Medical Center.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling and SusanUlrich of counsel), for respondent Maria Cipollone.

In an action to recover damages for medical malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Queens County (O'Donoghue, J.), dated September19, 2012, which granted the motion of the defendant Jamaica Hospital Medical Centerpursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it astime-barred, and (2) an order of the same court dated September 28, 2012, which grantedthe motion of the defendant Maria Cipollone pursuant to CPLR 3211 (a) (5) to dismissthe complaint insofar as asserted against her as time-barred.

Ordered that the orders are affirmed, with one bill of costs.

The plaintiff originally commenced a medical malpractice action against thedefendants Jamaica Hospital Medical Center and Maria Cipollone by filing a summonswith notice of action in the Supreme Court, Queens County, on December 3, 2010. Thesummons with notice of action alleged that the plaintiff sustained serious and permanentpersonal injuries on June 7, 2008. In an order entered August 17, 2011, the SupremeCourt dismissed the action due to the plaintiff's failure to provide a complaint after ademand was made pursuant to CPLR 3012 (b).

The plaintiff commenced this action against the defendants by filing a summons andcomplaint in the Supreme Court, Queens County, on February 23, 2012. The defendantsseparately moved to dismiss the complaint insofar as asserted against each of them on theground that the statute of limitations had run. The Supreme Court granted both motions,and the plaintiff appeals.

"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute oflimitations grounds, the moving defendant must establish, prima facie, that the time inwhich to commence the action has expired. The burden then shifts to the plaintiff to raisean issue of fact as to whether the statute of limitations is tolled or is otherwiseinapplicable" (Baptiste vHarding-[*2]Marin, 88 AD3d 752, 753 [2011];see Zaborowski v Local 74,Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768 [2012]).

"CPLR 205 (a) provides that when an action is dismissed on grounds other thanvoluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a finaljudgment on the merits, the plaintiff may bring a new action within six months of thedismissal, even though the action would otherwise be barred by the statute of limitations"(Marrero v Crystal Nails,114 AD3d 101, 103 [2013]).

Here, the defendants established, prima facie, that the 21/2-year statuteof limitations for medical malpractice had elapsed (see CPLR 214-a; Gaska v Heller, 29 AD3d945 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact as towhether the statute of limitations was tolled pursuant to CPLR 205 (a). Contrary to theplaintiff's contention, "CPLR 205 (a) clearly provides that the six-month period runsfrom the date of termination of the earlier action," and in this case, the prior actionterminated upon the entry of the order on August 17, 2011, which was more than sixmonths before the plaintiff commenced this action on February 23, 2012 (Pi Ju Tang v St. Francis Hosp.,37 AD3d 690, 691 [2007]; see Burns v Pace Univ., 25 AD3d 334, 335 [2007];Yates v Genesee County Hospice Found., 299 AD2d 900 [2002]; Gesegnet vHyman, 285 AD2d 719, 720-721 [2001]; Extebank v Finkelstein, 188 AD2d513 [1992]).

Accordingly, the Supreme Court properly granted the defendants' separate motionspursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against eachof them as time-barred. Mastro, J.P., Skelos, Roman and Maltese, JJ., concur.