Jones v. Brown

70 A.D.2d 897, 417 N.Y.S.2d 503, 1979 N.Y. App. Div. LEXIS 12487

Opinions

— In a medical malpractice action, defendant Brookhaven Memorial Hospital appeals from an order of the Supreme Court, Suffolk County, dated January 4, 1979, which denied its motion to dismiss the complaint pursuant to CPLR 3211 as being time barred or for summary judgment on the same ground. Order affirmed, with $50 costs and disbursements. An action based upon the same acts as this action had previously been commenced by the plaintiff by service of a summons without a complaint. The plaintiff’s case was eventually dismissed by Special Term for failure to serve a complaint. Said dismissal, however, was granted "without prejudice to the bringing of a new action.” At the time of that dismissal, the period of limitations for the bringing of a new action had already expired. As Special Term here correctly noted, "At that time the only way a new action might have been timely commenced was pursuant to CPLR 205(a).” Although CPLR 205 (subd [a]) expressly excepts a dismissal for neglect to prosecute from those cases to which its savings provision applies, the exception is not applicable where, as here, it appears that the court did not intend the dismissal to be for neglect to prosecute. Plaintiff renewed her suit within the period delineated by CPLR 205 and the motion to dismiss the action, or for summary judgment, on the ground that the action was time barred was properly denied. Titone, J. P., Shapiro and Cohalan, JJ., concur.