Jones v. Brown

• Decision Date: 11 June 1979
• Citation: 417 N.Y.S.2d 503,70 A.D.2d 897
• Parties: Catherine JONES, Respondent, v. William BROWN et al., Defendants, and Brookhaven Memorial Hospital, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 503

417 N.Y.S.2d 503

70 A.D.2d 897

Catherine JONES, Respondent, v. William BROWN et al., Defendants, and Brookhaven Memorial Hospital, Appellant.

Supreme Court, Appellate Division, Second Department.

June 11, 1979.

Mirabel, Wortman & Freidel, Huntington (W. Russell Corker, Huntington, of counsel), for appellant.

Reinitz & Weiss, East Northport (Pegalis & Wachsman, Great Neck (Roger K. Solymosy, Great Neck) of counsel), for respondent.

Before TITONE, J. P., and SUOZZI, SHAPIRO and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant Brookhaven Memorial Hospital appeals from an order of the Supreme Court, Suffolk County, dated January 4, 1979, which denied its motion to dismiss the complaint pursuant to CPLR 3211 as being time-barred or for summary judgment on the same ground.

Order affirmed, with $50 costs and disbursements.

An action based upon the same acts as this action had previously been commenced by the plaintiff by service of a summons without a complaint. The plaintiff's case was eventually dismissed by Special Term for failure to serve a complaint. Said dismissal, however, was granted "without prejudice to the bringing of a new action." At the time of that dismissal, the period of limitations for the bringing of a new action had already expired. As Special Term here correctly noted, "(a)t That time the only way a new action might have been timely commenced was pursuant to CPLR 205(a)."

Although CPLR 205 (subd. (a)) expressly excepts a dismissal for neglect to prosecute from those cases to which its savings provision applies, the exception is not applicable where, as here, it appears that the court did not intend the dismissal to be for neglect to prosecute. Plaintiff renewed her suit within the period delineated by CPLR 205 and the motion to dismiss the action, or for summary judgment, on the ground that the action was time-barred was properly denied.

TITONE, J. P., and SHAPIRO and COHALAN, JJ., concur.

SUOZZI, J., dissents and votes to reverse the order and grant the defendant hospital's motion to dismiss the complaint as time-barred, with the following memorandum:

By affirming the denial of the defendant hospital's motion to dismiss the plaintiff's complaint as time-barred, the majority necessarily holds that (1) a dismissal of an action pursuant to CPLR 3012 (subd. (b)) for failure to serve a complaint (the action having been timely commenced by service of a summons only) does not constitute a dismissal "for neglect to prosecute the action" within CPLR 205 (subd. (a)) and (2) plaintiff had the right to "commence a new action upon the same (cause of action) within six months" after the dismissal pursuant to CPLR 205 (subd. (a)), despite the fact that the Statute of Limitations had run.

In my view, such a holding is contrary to the leading authorities which have interpreted CPLR 205.

FACTS

After an injury to her right lower extremity, plaintiff came under the care of the defendant hospital for the period commencing June 4, 1974 and terminating October 3, 1974.

Plaintiff instituted a malpractice action against the hospital by the service of a summons only on May 3, 1977. The action was timely commenced, since the then applicable three-year Statute of Limitations did not expire until three years after the final date of treatment by Brookhaven Memorial Hospital, i. e., October 3, 1977.

Plaintiff agreed to a stipulation extending appellant's time to appear and answer until June 1, 1977. On June 1, 1977 the hospital served its notice of appearance and demanded service of the complaint from plaintiff. On August 29, 1977 the hospital agreed to extend plaintiff's time for service of her complaint.

After plaintiff's time for service of the complaint, as extended, expired, appellant moved pursuant to CPLR 3012 (subd. (b)) to dismiss the action. In opposition to that motion, plaintiff simply indicated that a physical examination had been conducted four weeks earlier and that a promised detailed medical report which was necessary to prepare the complaint had not been forthcoming. On December 5, 1977 Special Term granted the motion to dismiss "without prejudice to the bringing of a new action."

On April 13, 1978 plaintiff commenced this action by service of a new summons and verified complaint upon the hospital, Appellant served a timely answer wherein it raised the affirmative defense that the action was time-barred by the Statute of Limitations. Thereafter, it moved to dismiss the complaint on that ground. In denying the motion to dismiss the plaintiff's complaint as time-barred, Special Term, in its order, held:

"The order * * * dated December 5, 1977, provides that the action is dismissed, 'without prejudice to the bringing of a new action.' At That time the only way a new action might have been timely commenced was pursuant to CPLR 205(a). This instant action was timely commenced pursuant to that section and the order of December 5, 1977, which is the law of the case."

It is from this order only that the defendant hospital appeals.

THE LAW

CPLR 205 (subd. (a)) provides, in pertinent part:

"New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a * * * dismissal of the complaint for neglect to prosecute the action * * * the plaintiff * * * may commence a new action upon the same transaction or occurrence * * * within six months after the termination".

In interpreting this section of the CPLR, appellate court holdings have clearly indicated that a dismissal for failure to serve a complaint constitutes a "neglect to prosecute the action" within CPLR 205 (subd. (a)) and that such a dismissal precludes the commencement of a new action pursuant to CPLR 205 (subd. (a)).

Thus, in Loomis v. Girard Fire & Mar. Ins. Co., 256 App.Div. 443, 10 N.Y.S.2d 283, which was decided pursuant to section 23 of the Civil Practice Act (the predecessor statute of CPLR 205 (subd. (a)), which differed from the latter only insofar as it provided a one-year extension), plaintiffs timely commenced an action on September 30, 1933 by service of a summons alone. The action was brought on a fire insurance policy for a loss which occurred on October 4, 1932. On June 19, 1936 the action was dismissed because of plaintiffs' failure to serve their complaint. Thereafter, plaintiffs instituted a new action by service of a summons and complaint on June 11, 1937. Defendant moved for summary judgment arguing that the Statute of Limitations had run. In granting the motion, the court stated (Supra, pp. 443-444, 10 N.Y.S.2d p. 284):

"The order entered in the former action stated that the action was dismissed. It was in substance a dismissal of the complaint for failure of service * * * as well as neglect to prosecute the action. Consequently the statute * * * does not now help the appellants for one of the exceptions to the right to commence a new action for the same cause after the expiration of the time limited therefor and within one year after the termination of the prior action is a dismissal of the complaint for failure to prosecute the action."

Although Loomis was decided under the Civil Practice Act, a similar holding was reached under CPLR 205 in Wright v. Farlin (42 A.D.2d 141, 346 N.Y.S.2d 11). In Wright, the Appellate Division, Third Department, held (Supra, p. 143, 346 N.Y.S.2d p. 13):

"In a case interpreting similar provisions of the former Civil Practice Act (Loomis v. Girard Fire & Mar. Ins. Co., 256 App.Div. 443, 10 N.Y.S.2d 283), we equated, in substance, a dismissal of a complaint for failure of service with neglect to prosecute the action. The cases decided under the CPLR have accepted, at last (sic) implicitly, this line of reasoning (see, e. g., Johnson v. Glens Falls Hosp., 39 A.D.2d 802, 332 N.Y.S.2d 312). The rule holding a subdivision (b) of CPLR 3012 (subd. (b)) dismissal to be one for neglect to prosecute emerging independently from that section of the CPLR is grounded in logic and has been favorably commented upon: '* * * (B)y mere analysis, the failure to serve a complaint is indeed a failure to prosecute the action. Service of the complaint is an opening step in the action. Omission to serve it is omission to prosecute at the very outset, which might be treated even more severely than omission occurring at later stages' (Supplementary Practice Commentary by David D. Siegel, McKinney's Cons.Laws of N.Y., Book 7B, 1965 Supp., p. 99, under CPLR 3012). We therefore hold that the granting of the motion for summary judgment and the dismissal of the complaint with respect to defendants Farlin, Cassidy,...