Suarez v. Phelps Memorial Hospital Ass'n

130 A.D.2d 571, 515 N.Y.S.2d 512, 1987 N.Y. App. Div. LEXIS 46570

Opinion

In an action to recover damages, inter alia, for personal injuries and wrongful death, the plaintiff appeals (1) from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered March 17, 1986, as granted that branch of the motion of the defendant Phelps Memorial Hospital Association which was to dismiss the third cause of action to recover damages for wrongful death on the ground that it was barred by the Statute of Limitations, and (2) as limited by his brief, from so much of an order of the same court, entered May 1, 1986, as, upon, in effect, granting reargument, adhered to its original determination.

Ordered that the appeal from the order entered March 17, 1986, is dismissed, as that order was superseded by the order entered May 1, 1986, made upon reargument; and it is further,

Ordered that the order entered May 1, 1986, is reversed insofar as appealed from, the order entered March 17, 1986, is vacated insofar as it granted that branch of the respondent’s motion which was to dismiss the third cause of action to recover damages for wrongful death as time barred, and that branch of the respondent’s motion is denied; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

Since at the time of her death, the plaintiff decedent had a valid cause of action to recover damages for personal injuries and since the wrongful death cause of action was commenced within two years of the date of her death, the wrongful death claim was timely commenced (see, EPTL 5-4.1; McDaniel v Clarkstown Cent. School Dist. No. 1, 110 AD2d 349, 353, appeal dismissed 67 NY2d 918; Marlowe v DuPont deNemours & Co., 112 AD2d 769). Mollen, P. J., Brown, Weinstein, Eiber and Harwood, JJ., concur.