Bailey v. Brookdale University Hospital & Medical Center

292 A.D.2d 328, 738 N.Y.S.2d 586, 2002 N.Y. App. Div. LEXIS 2205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated June 5, 2001, as granted the cross motion of the defendant Brookdale University Hospital and Medical Center to dismiss the complaint insofar as asserted against it, and denied their motion for an extension of time to serve the complaint upon the defendant Devendrá B. Brahmbatt.

Ordered that the order is modified by deleting the provision thereof granting the cross motion of the defendant Brookdale University Hospital and Medical Center and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the complaint is reinstated insofar as asserted against that defendant.

The parties terminated the first action brought by the plaintiffs by execution of a stipulation of discontinuance which stated that the action was discontinued “without prejudice.” Contrary to the respondents’ contentions and the Supreme Court’s determination, this was a sufficiently-expressed statement of intent to commence a new action pursuant to CPLR 205; specific reference to that statute was unnecessary (see, George v Mt. Sinai Hosp., 47 NY2d 170; Montgomery v Minarcin, 245 AD2d 920; see also, Kingston v Brooklyn Hosp. Ctr., 278 AD2d 283; Matter of Baird, Patrick & Co. v Epstein, 244 AD2d 155).

However, the Supreme Court properly denied the plaintiffs’ cross motion for an extension of time to serve the defendant Devendrá B. Brahmbatt pursuant to CPLR 306-b, since the plaintiffs failed to establish that they were entitled to such an extension of time (see, Leader v Maroney, Ponzini & Spencer, 97 NY2d 95). Florio, J.P., Feuerstein, O’Brien and Adams, JJ., concur.