Eames v. St. John's Episcopal Hospital

268 A.D.2d 405, 701 N.Y.S.2d 622, 2000 N.Y. App. Div. LEXIS 191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2000
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendants separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated November 23, 1998, as granted the plaintiffs’ motion for leave to commence a new action pursuant to CPLR 205 (a). The appeal brings up for review so much of an order of the same court, entered February 22, 1999, as, upon reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated November 23, 1998, is dismissed, without costs or disbursements, as that order was superseded by the order entered February 22, 1999, made upon reargument; and it is further,

Ordered that the order dated February 22, 1999, is modified by deleting the provision thereof granting the plaintiffs leave to commence a new action, and substituting therefor a provision granting the bankruptcy trustee leave to commence a new action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred when it granted the plaintiffs leave to commence a new action pursuant to CPLR 205 (a), as that right was properly vested in the bankruptcy trustee (see, Pinto v Ancona, 262 AD2d 472). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.