Collins v. Jamaica Hosp.

• Court: New York Supreme Court — Appellate Division
• Citation: Collins v. Jamaica Hosp., 551 N.Y.S.2d 950, 158 A.D.2d 649 (N.Y. App. Div. 1990)
• Decision Date: 26 February 1990
• Parties: James J. COLLINS, etc., Respondent, v. JAMAICA HOSPITAL, et al., Appellants, et al., Defendants.

Page 950

551 N.Y.S.2d 950

158 A.D.2d 649

James J. COLLINS, etc., Respondent, v. JAMAICA HOSPITAL, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Feb. 26, 1990.

Jones Hirsch Connors & Bull, New York City (Michael Piziall and Louise H. Hayes, of counsel), for appellant Garcia A. Jean.

Bower & Gardner, New York City (Ethan B. Gerber, of counsel), for appellant Jamaica Hosp.

Henry Conan Caron, New York City, for respondent.

Before MOLLEN, P.J., and MANGANO, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice and wrongful death, (1) the defendant Garcia A. Jean appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (DiTucci, J.), dated February 17, 1989, as, upon renewal and reargument, adhered to so much of its prior determination in an order dated May 5, 1988, as denied that branch of his motion which was to dismiss the plaintiff's causes of action sounding in medical malpractice and wrongful death as time barred, and granted that branch of the plaintiff's cross motion which was to dismiss the second, third and fourth affirmative defenses in his answer, and (2) the defendant Jamaica Hospital appeals, as limited by its brief, from so much of the same order as denied its cross motion to dismiss the cause of action sounding in wrongful death insofar as it is asserted against it as time barred.

ORDERED that the order is modified, on the law, by (1) deleting from the second decretal paragraph thereof the word "only"; (2) deleting the fourth decretal paragraph thereof and substituting therefor provisions (a) vacating the provisions of the order of May 5, 1988, which denied that branch of the defendant Jean's motion which was to dismiss the plaintiff's cause of action sounding in wrongful death as time barred by the two-year Statute of Limitations and granted that branch of the plaintiff's cross motion which was to dismiss the defendant Jean's fourth affirmative defense (b) granting that branch of the defendant Jean's motion which was to dismiss the plaintiff's cause of action sounding in wrongful death insofar as it is asserted against him and (c) denying that branch of the plaintiff's cross motion which was to dismiss the defendant Jean's fourth affirmative defense, and (3) by adding, in the fifth decretal paragraph thereof, after the word "timely", the words "is granted"; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the appellants.

On December 7, 1984, Muriel James died during the course of a Ceasarean section operation performed by the defendant Jean in the operating room of the defendant Jamaica Hospital. Muriel James died intestate and was survived by her husband, mother, and two minor infants. Her husband, mother, and older infant were nondomiciliary aliens. Accordingly, under the applicable statute at the time of her death, all of these persons were unable to receive letters of administration (see, SCPA former 707(1)(a), (c); cf., SCPA 707(1)(c), as amended L.1986, ch. 780, § 1; Matter of Cowen, 134 Misc.2d 972, 513 N.Y.S.2d 610; Matter of Al-Ahmad, 133 Misc.2d 338, 507 N.Y.S.2d 378).

It was not until May 1987 that the decedent's husband initiated a proceeding in the Surrogate's Court, Queens County, to have an administrator appointed for the limited purpose of commencing an action against the defendants Jean and Jamaica Hospital. On June 5, 1987, letters of administration were issued to James Collins, the Public Administrator of Queens County. On that same day, a summons with notice, seeking damages for conscious pain and suffering and wrongful death and naming Collins as the plaintiff and Jean and Jamaica Hospital as defendants, was filed with the Queens County Clerk pursuant to CPLR 203(b)(5). On August 4, 1987,...