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ALTHOUGH THE MEDICAL MALPRACTICE ACTION WAS COMMENCED IN DECEDENT’S NAME AFTER DECEDENT HAD DIED, THE ACTION WAS NOT A NULLITY AND WAS PROPERLY REVIVED WITHIN SIX MONTHS PURSUANT TO CPLR 205 (a); SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court and ruling on some issues of first impression, determined plaintiffs’ medical malpractice action should not have been dismissed. The decision is too detailed and comprehensive to be fairly summarized here. The medical malpractice action was started in 2013 in decedent’s name three months after decedent’s death. Supreme Court erroneously declared that action a nullity. The order dismissing the 2013 action did not include the reasons for the dismissal as is required by the statute. In a later order, Supreme Court attempted to supply the missing reason as “neglect to prosecute.” The Second Department held that the 2013 action was not a nullity and it was properly revived within six months of the dismissal. The subsequent attempt to provide the reason for the dismissal as “neglect to prosecute,” which would preclude reviving the action within six months, was ineffective. The Second Department’s summary of its holding states:

The plaintiff, pursuant to CPLR 205(a), was entitled to commence this action upon the termination of the 2013 action. The order dated November 6, 2015, directing the dismissal of the 2013 action did not set forth on the record a specific pattern of conduct constituting a neglect to prosecute required by CPLR 205(a) to preclude the commencement of subsequent litigation against the defendants, the plaintiff’s nonviable substitution motion does not constitute evidence of neglect to prosecute, and the erroneous naming of the decedent as a plaintiff in the 2013 action does not preclude the application of CPLR 205(a). In addition, CPLR 5019(a) is inapplicable, as the June 6, 2016, order cannot be utilized to substantively change the order dated November 6, 2015.

Accordingly, the judgment entered August 23, 2016, is reversed, on the law, the complaint is reinstated … . Sokoloff v Schor, 2019 NY Slip Op 06176, Second Dept 8-21-19

 

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