Kovacs v. Shee
Opinion
Kovacs v Shee
2026 NY Slip Op 04935
August 12, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Susan Kovacs, etc., et al., respondents,
v
Brian Shee, etc., et al., appellants, et al., defendants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 12, 2026
2024-09344, (Index No. 500816/24)
Lara J. Genovesi, J.P.
Linda Christopher
Barry E. Warhit
Lourdes M. Ventura, JJ.
Steven Banks, Corporation Counsel, New York, NY (Deborah A. Brenner and Karin Wolfe of counsel), for appellants.
Silberstein & Miklos, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for medical malpractice and wrongful death, the defendants Brian Shee, Rafael Fazylov, Susan Mozes, Lori Lemberg, Katherine Ni, Stanley Goldberg, and New York City Health and Hospitals Corporation, also sued herein as Coney Island Hospital and Jacobi Medical Center, appeal from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated May 15, 2024. The order, insofar as appealed from, denied those defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On February 20, 2022, Imre Turak (hereinafter the decedent) died. On April 10, 2023, the plaintiff Zsanett Turak (hereinafter Turak), as a proposed administrator of the decedent's estate, commenced an action against Brian Shee, Sushant Remersu, Silvio Ghirardo, Thomas McIntyre, Rafael Fazylov, Susan Mozes, Lori Lemberg, Katherine Ni, Stanley Goldberg, Anil Narula, Edward Chao, Coney Island Hospital, Jacobi Medical Center, and New York City Health and Hospital Corporation (hereinafter collectively the defendants), to recover damages for medical malpractice and wrongful death. In an order dated September 20, 2023, the Supreme Court directed dismissal of the action without prejudice to recommence pursuant to CPLR 205(a) on the ground that Turak lacked capacity to commence the action because she had not been appointed the administrator of the decedent's estate.
On November 2, 2023, Turak renounced all rights to letters of administration of the decedent's estate. On November 17, 2023, limited letters of administration were issued by the Surrogate's Court, Kings County, to the plaintiff Susan Kovacs.
On January 9, 2024, this action was commenced against the defendants, reasserting the same causes of action as in the first action but erroneously naming Turak as the appointed administrator of the decedent's estate. On February 26, 2024, upon the defendants moving to dismiss the complaint for lack of legal capacity to sue, Turak amended the complaint as of right, [*2]substituting Kovacs, as the appointed administrator of the decedent's estate.
On March 25, 2024, Shee, Fazylov, Mozes, Lemberg, Ni, Goldberg, and New York City Health and Hospitals Corporation, also sued herein as Coney Island Hospital and Jacobi Medical Center (hereinafter collectively the appellants), filed the instant motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them, contending, among other things, that it was time-barred and that the plaintiffs were not entitled to the benefit of the time extension afforded by CPLR 205(a). In an order dated May 15, 2024, the Supreme Court, inter alia, denied the motion. This appeal ensued.
The Supreme Court properly denied dismissal of the amended complaint insofar as asserted against the appellants as time-barred. "A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired" (Kogut v Village of Chestnut Ridge, 214 AD3d 777, 778 [internal quotation marks omitted]; see Listwon v 500 Metro. Owner, LLC, 188 AD3d 1028, 1029). "The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising a question of fact as to whether such an exception applies, or as to whether the cause of action was interposed within the applicable statute of limitations" (Kogut v Village of Chestnut Ridge, 214 AD3d at 779-780 [internal quotation marks omitted]). The statute of limitations for an action to recover damages for non-wrongful death claims against the New York City Health and Hospitals Corporation is one year and 90 days, whereas the statute of limitations for a wrongful death cause of action is two years (see Unconsolidated Laws § 7401[2]; Public Authorities Law § 2981). Here, the appellants established that the instant action was commenced outside of the applicable limitations periods and, therefore, that this action was untimely (see Kogut v Village of Chestnut Ridge, 214 AD3d at 779).
However, in opposition, the plaintiffs established that the action was timely commenced pursuant to the savings provision of CPLR 205(a). "CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences" (Sokoloff v Schor, 176 AD3d 120, 126). "Although, as a general matter, only the plaintiff in the original action is entitled to the benefits of CPLR 205(a), the Court of Appeals has nevertheless recognized an exception to this general rule under certain circumstances where the plaintiff in the new action is seeking to enforce 'the rights of the plaintiff in the original action'" (Goodman v Skanska USA Civ., Inc., 169 AD3d 1010, 1012, quoting Reliance Ins. Co. v PolyVision Corp., 9 NY3d 52, 57). "The Court of Appeals also has stated that the statute's 'broad and liberal purpose is not to be frittered away by any narrow construction'" (id. [internal quotation marks omitted], quoting Malay v City of Syracuse, 25 NY3d 323, 327; see Gaines v City of New York, 215 NY 533, 539).
Here, contrary to the appellants' contention, the Supreme Court properly applied the six-month extension afforded by CPLR 205(a). The "real party in interest—the decedent's estate—was the same in both actions," as both Turak and Kovacs were acting in a representative capacity of the decedent's estate, albeit Turak did so erroneously (Mendez v Kyung Yoo, 23 AD3d 354, 355). Consequently, this action is not seeking to enforce any rights separate and independent from those asserted in the first action (see Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 199; cf. ACE Sec. Corp. v DB Structured Prods., Inc., 38 NY3d 643, 654). Since the plaintiffs commenced the instant action within six months of the dismissal of the first action and timely amended the complaint to correct the defective caption, the court properly determined that the plaintiffs were entitled to the savings provision of CPLR 205(a) (see Goodman v Skanska USA Civ., Inc., 169 AD3d at 1012). This conclusion is in keeping with the remedial purpose of CPLR 205(a) and the legislative intent underlying the enactment of the statute, which is to ensure "the diligent suitor [has] an opportunity to have a claim heard on the merits" (ACE Sec. Corp. v DB Structured Prods. Inc., 38 NY3d at 655 [emph
Free access — add to your briefcase to read the full text and ask questions with AI
Kovacs v. Shee (Kovacs v. Shee) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.