Kramer v. Herrera

188 A.D.2d 1038, 592 N.Y.S.2d 196, 1992 N.Y. App. Div. LEXIS 14894

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in finding that plaintiff’s

complaint alleging medical malpractice was not time-barred on the ground that plaintiff was entitled to the benefit of the six-month extension period granted by CPLR 205. Plaintiff’s prior action for false arrest and malicious prosecution was dismissed as time-barred pursuant to the one-year Statute of Limitations (CPLR 215 [3]). We affirmed that ruling (Kramer v Herrera, 176 AD2d 1241). Since the timely commencement of the prior action is a condition precedent to the invocation of CPLR 205 (a), plaintiff cannot obtain the benefit of the six-month extension (see, Markoff v South Nassau Community Hosp., 61 NY2d 283, 288). Without benefit of that extension, plaintiff’s action for medical malpractice is time-barred by the 2Vi-year Statute of Limitations set forth in CPLR 214-a. (Appeal from Order of Supreme Court, Monroe County, Galloway, J. — Dismiss Complaint.) Present — Callahan, J. P., Pine, Lawton, Boehm and Davis, JJ.