Scharlack v. Richmond Memorial Hospital

144 A.D.2d 354, 534 N.Y.S.2d 873, 1988 N.Y. App. Div. LEXIS 11196

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1988
• Status: Published

Opinion

In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 21, 1987, which granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the Statute of Limitations.

Ordered that the order is affirmed, with costs.

The Supreme Court, Richmond County, properly concluded that under the specific facts herein, the dismissal of the original timely action as against the defendant (see, Scharlack v Richmond Mem. Hosp., 127 AD2d 580) was inferentially for "neglect to prosecute” within the meaning of CPLR 205 (a) (Ivory v Ekstrom, 98 AD2d 763). Since the statutory six-month extension is not available, the plaintiff’s instant action is barred by the applicable Statute of Limitations (see, CPLR 214 [former (6)]; 208). Accordingly, the defendant’s motion, which sought dismissal of the complaint upon that ground, was properly granted (Ivory v Ekstrom, supra). Mangano, J. P., Brown, Sullivan and Harwood, JJ., concur.