| Robles v Brooklyn-Queens Nursing Home, Inc. |
| 2015 NY Slip Op 06797 [131 AD3d 1032] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Felix Robles, Individually and as Executor of RosaRivera, Deceased, Respondent, v Brooklyn-Queens Nursing Home, Inc., et al.,Appellants. |
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y.(Frank Dumont and Thomas Witting of counsel), for appellants Brooklyn-QueensNursing Home, Inc., and Brooklyn Queens Nursing Home.
Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Jacqueline Mandell andDavid Bloom of counsel), for appellant Kingsbrook Jewish Medical Center.
Sheryl R. Menkes (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, negligence, andwrongful death, the defendants Brooklyn-Queens Nursing Home, Inc., and BrooklynQueens Nursing Home appeal, and the defendant Kingsbrook Jewish Medical Centerseparately appeals, as limited by their respective briefs, from so much of an order of theSupreme Court, Kings County (Bunyan, J.), dated May 28, 2014, as denied thosebranches of their respective motions which were pursuant to CPLR 3211 (a) to dismisscertain causes of action insofar as asserted against them as time-barred.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable by the appellants appearing separately and filing separate briefs.
Prior to being appointed administrator of the decedent's estate, the plaintiffcommenced two prior medical malpractice actions in 2011 and 2012, respectively. Thoseactions were dismissed on the ground that the plaintiff lacked capacity to sue. After hewas issued letters of administration, while the motions to dismiss the first two actionswere pending, the plaintiff commenced the instant, third medical malpractice action. Thedefendants Brooklyn-Queens Nursing Home, Inc., and Brooklyn Queens Nursing Homemoved, and the defendant Kingsbrook Jewish Medical Center (hereinafter collectivelythe appellants) separately moved, inter alia, to dismiss certain causes of action insofar asasserted against them as time-barred. The Supreme Court denied the subject branches oftheir motions.
The appellants contend that the plaintiff is not entitled to the benefit of the six-monthextension for pleading pursuant to CPLR 205 (a) because the instant action wascommenced prior to the dismissal of the two earlier actions. This contention isimproperly raised for the first time on appeal, and therefore, is not properly before thisCourt (see Koziar v GrandPalace Rest., 125 AD3d 607, 607 [2015]; Gaetano Dev. Corp. v Lee, 121 AD3d 838, 840 [2014]; Talamas v Metropolitan Transp.Auth., 120 AD3d 1333, 1333 [2014]). The plaintiff did not have the opportunityto address this argument and the [*2]Supreme Court didnot have the opportunity to consider it (see Fusco v City of New York, 71 AD3d 1083, 1084[2010]; Matter of Mercury Ins.Group v Ocana, 46 AD3d 561 [2007]; Sarva v Chakravorty, 34 AD3d 438, 439 [2006]). An issuemay not be raised for the first time on appeal where it "could have been obviated or curedby factual showings or legal countersteps" in the trial court (Telaro v Telaro, 25NY2d 433, 439 [1969]). Had this argument been raised in the Supreme Court, theplaintiff would have been entitled to the benefit of the six-month extension savingprovision of CPLR 205 (a) and would have been granted an opportunity to commence anew action (see also Malay vCity of Syracuse, 25 NY3d 323 [2015]), as the prior actions were dismissed forlack of capacity to sue, which is not a dismissal on the merits (see Carrick v CentralGen. Hosp., 51 NY2d 242, 252 [1980]; Snodgrass v Professional Radiology, 50 AD3d 883, 884[2008]; Lambert v Sklar, 30AD3d 564, 566 [2006]).
Moreover, the defendants' arguments that the prior actions were untimelycommenced, and that CPLR 205 (a) does not apply because the action commenced in2011 was dismissed for lack of prosecution, were rejected in a prior order of the SupremeCourt, Kings County, entered March 19, 2013. The defendants' appeals from that orderwere dismissed for failure to perfect. As a general rule, this Court does not consider anissue on a subsequent appeal which was raised or could have been raised on an earlierappeal which was dismissed for failure to perfect, although this Court has the inherentjurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750,754 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]). We decline to exercise thatjurisdiction in this case. We conclude that the Supreme Court correctly determined, basedupon its prior determination that the 2011 action was timely commenced and was notdismissed on the merits, that all of the plaintiff's causes of action were timelyinterposed.
The defendants' remaining contentions are without merit. Rivera, J.P., Dickerson,Hinds-Radix and Barros, JJ., concur.