Kingston v. Brooklyn Hospital Center

278 A.D.2d 283, 717 N.Y.S.2d 323, 2000 N.Y. App. Div. LEXIS 12912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), entered January 31, 2000, which granted the respective motions of the defendant Brooklyn Hospital Center and the defendants Roberto Anon and Ada Anon to dismiss the complaint insofar as asserted against them as time-barred.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs prior action, based on the same transaction as that upon which the present action is based, was dismissed on April 9, 1998, under circumstances evincing a neglect to prosecute (see, Keel v Parke, Davis & Co., 72 AD2d 546, affd 50 NY2d 833). The Supreme Court therefore properly dismissed the present action, holding that it was not commenced within the applicable prescriptive period (see, CPLR 214-a), and also properly determined that the action could not be deemed timely pursuant to CPLR 205 (a).

The plaintiffs reliance on Schuman v Hertz Corp. (17 NY2d 604), is unpersuasive. Contrary to the facts of that case, the record here does not permit, much less compel, the conclusion that dismissal of the prior action was intended to be without prejudice to the commencement of a second action. The affirmation submitted by the plaintiffs substitute counsel, in which she asserts that the Justice who dismissed the prior action told her that the dismissal was “without prejudice,” is contradicted by an affirmation of defense counsel, and is not supported by the record. Bracken, J. P., Altman, Friedmann and Krausman, JJ., concur.