Wells v. Mount Sinai Hospital and Medical Center

Appellate Division of the Supreme Court of New York

Wells v. Mount Sinai Hospital and Medical Center

196 A.D.2d 749, 602 N.Y.S.2d 45, 1993 N.Y. App. Div. LEXIS 8597

Appellate Division of the Supreme Court of the State of New York·Decided September 21, 1993·Published·Cited by 4 cases

Opinion

Order, Supreme Court, New York County (Stanley Sklar, J.), entered June 23, 1992, which granted defendants’ motion to dismiss plaintiffs causes of action for medical malpractice and intentional infliction of emotional distress as barred by the Statute of Limitations, and denied plaintiffs cross motion to amend the summons, unanimously affirmed, without costs.

We agree with the IAS Court that plaintiffs filing of a summons that did not comply with the notice requirements of CPLR 305 (b) was jurisdictionally defective and consequently failed to toll the Statute of Limitations pursuant to CPLR 203 (b) (5) (Kaplan v Manoli, 100 AD2d 928, affd 64 NY2d 849; Frerk v Mercy Hosp., 99 AD2d 504, affd 63 NY2d 635).

The IAS Court also properly denied plaintiff permission to amend the summons in order to set forth the nature of the action. A jurisdictionally void summons cannot be amended to breathe life into a dead claim (see, Tamburo v P & C Food Mkts., 36 AD2d 1017), since to do so would be to prejudice "a substantial right of a party against whom the summons issued” (CPLR 305 [c]). Concur—Sullivan, J. P., Carro, Ellerin, Kassal and Nardelli, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Stanley Sklar, J.), entered June 23, 1992, which granted defendants’ motion to dismiss plaintiffs causes of action for medical malpractice and intentional infliction of emotional distress as barred by the Statute of Limitations, and denied plaintiffs cross motion to amend the summons, unanimously affirmed, without costs.

We agree with the IAS Court that plaintiffs filing of a summons that did not comply with the notice requirements of CPLR 305 (b) was jurisdictionally defective and consequently failed to toll the Statute of Limitations pursuant to CPLR 203 (b) (5) (Kaplan v Manoli, 100 AD2d 928, affd 64 NY2d 849; Frerk v Mercy Hosp., 99 AD2d 504, affd 63 NY2d 635).

The IAS Court also properly denied plaintiff permission to amend the summons in order to set forth the nature of the action. A jurisdictionally void summons cannot be amended to breathe life into a dead claim (see, Tamburo v P & C Food Mkts., 36 AD2d 1017), since to do so would be to prejudice "a substantial right of a party against whom the summons issued” (CPLR 305 [c]). Concur—Sullivan, J. P., Carro, Ellerin, Kassal and Nardelli, JJ.

Wells v. Mount Sinai Hospital and Medical Center, 196 A.D.2d 749, 602 N.Y.S.2d 45, 1993 N.Y. App. Div. LEXIS 8597 (N.Y. Ct. App. 1993).

Pincite

196 A.D.2d 749 (Wells v. Mount Sinai Hospital and Medical Center) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related