Alcide v. Westchester County Medical Center

234 A.D.2d 239, 651 N.Y.S.2d 327, 1996 N.Y. App. Div. LEXIS 12767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1996
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered September 6, 1995, as granted the motion of the defendants pursuant to CPLR 3211 (a) (4) to dismiss the complaint in an action bearing Westchester County Index No. 4884/95. Justice Copertino has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs’ contention, their commencement of a second, identical action against the defendants pursuant tó CPLR 306-b (b) was improper, inasmuch as there is no evidence in the record that their first action had been dismissed. Accordingly, the Supreme Court acted properly in granting the defendants’ motion pursuant to CPLR 3211 (a) (4) to dismiss the second action (see, e.g., DeBerardine v Rockland Elec. Co., 137 AD2d 647, 649).

The plaintiffs’ remaining contentions are improperly raised for the first time on appeal (see, Northville Indus. Corp. v National Union Fire Ins. Co., 218 AD2d 19, 34; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757, 758). Mangano, P. J., Rosenblatt, Sullivan and Copertino, JJ., concur.