Hillen v. Di Paolo

Appellate Division of the Supreme Court of New York

Hillen v. Di Paolo

100 A.D.2d 893, 474 N.Y.S.2d 561, 1984 N.Y. App. Div. LEXIS 18016

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 16, 1984

StatusPublished

Cited by1 cases

This text of 100 A.D.2d 893 (Hillen v. Di Paolo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hillen v. Di Paolo, 100 A.D.2d 893, 474 N.Y.S.2d 561, 1984 N.Y. App. Div. LEXIS 18016 (N.Y. Ct. App. 1984).

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Opinion

In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered May [894]*8944, 1983, which, upon “plaintiff’s” motion, dismissed the complaint with leave to the plaintiff’s administrator to commence a new action within six months pursuant to CPLR 205 (subd [a]). I Order affirmed, with costs. 11 Notwithstanding the fact that the action was improperly brought in the name of a deceased plaintiff, it was still a timely commenced action for purposes of CPLR 205 (subd [a]) and therefore, since it was not voluntarily discontinued, dismissed for neglect to prosecute, or terminated by a judgment on the merits, plaintiff’s administrator may commence a new action within six months (George v Mount Sinai Hosp., 47 NY2d 170; see Mingone v State of New York, 100 AD2d 897; cf. Markoff v South Nassau Community Hosp., 61 NY2d 283). Under the circumstances, the fact that it was the administrator, rather than defendants, who moved to dismiss the clearly improper action in order to expedite the commencement of the new action did not render the termination a voluntary discontinuance. Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.

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In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered May [894]*8944, 1983, which, upon “plaintiff’s” motion, dismissed the complaint with leave to the plaintiff’s administrator to commence a new action within six months pursuant to CPLR 205 (subd [a]). I Order affirmed, with costs. 11 Notwithstanding the fact that the action was improperly brought in the name of a deceased plaintiff, it was still a timely commenced action for purposes of CPLR 205 (subd [a]) and therefore, since it was not voluntarily discontinued, dismissed for neglect to prosecute, or terminated by a judgment on the merits, plaintiff’s administrator may commence a new action within six months (George v Mount Sinai Hosp., 47 NY2d 170; see Mingone v State of New York, 100 AD2d 897; cf. Markoff v South Nassau Community Hosp., 61 NY2d 283). Under the circumstances, the fact that it was the administrator, rather than defendants, who moved to dismiss the clearly improper action in order to expedite the commencement of the new action did not render the termination a voluntary discontinuance. Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.

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Bluebook (online)

100 A.D.2d 893, 474 N.Y.S.2d 561, 1984 N.Y. App. Div. LEXIS 18016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillen-v-di-paolo-nyappdiv-1984.

Opinion

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