Thompson v. Mary Immaculate Hospital Division of Catholic Medical Center of Brooklyn & Queens, Inc.

60 A.D.2d 912, 401 N.Y.S.2d 569, 1978 N.Y. App. Div. LEXIS 9968

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1978
• Status: Published

Opinion

In a medical malpractice action to recover damages for conscious pain and suffering and wrongful death, the defendant hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated August 26, 1977, as, in granting its motion to dismiss the action on the ground that another action was pending between the parties in the Supreme Court, Queens County, provided that the Nassau County action would not be dismissed if "plaintiff files with the Clerk of the Supreme Court, Queens County a Notice of Discontinuance of that prior action without prejudice”. Order reversed insofar as appealed from, on the law, without costs or disbursements, and defendant’s motion to dismiss the Nassau County action is granted unconditionally; the Queens County action is deemed to be still pending and any discontinuance thereof by plaintiff in reliance upon the order appealed from is deemed void and of no force or effect. We find that the Queens County action was still pending at the time of the commencement of the Nassau County action. Under all of the circumstances of this case—and particularly the preclusion orders of the Supreme Court, Queens County, dated September 10, 1976 and January 25, 1977, respectively, it was an improvident exercise of discretion not to unconditionally grant defendant’s motion to dismiss the Nassau County action pursuant to CPLR 3211 (subd [a], par 4). Our determination, however, is without prejudice to any further proceedings plaintiff may be advised to take with respect to the advancement of the prosecution of her case or to an application for relief with respect to the orders of preclusion. Latham, J. P., Rabin, Gulotta and Margett, JJ., concur.