Kramer v. Twin County Grocers

• Decision Date: 26 June 1989
• Citation: 151 A.D.2d 722,542 N.Y.S.2d 787
• Parties: Isabel KRAMER, etc., Plaintiff-Respondent, v. TWIN COUNTY GROCERS d/b/a Foodtown Supermarket Corp., defendant-respondent, Empire Kosher Poultry, Inc., sued herein as Empire Food, Corp., defendant-third-party plaintiff-respondent; Nosher's Heaven, Inc., et al., defendants third-party defendants-appellants.
• Court: New York Supreme Court — Appellate Division

Page 787

542 N.Y.S.2d 787

151 A.D.2d 722

Isabel KRAMER, etc., Plaintiff-Respondent, v. TWIN COUNTY GROCERS d/b/a Foodtown Supermarket Corp.,

defendant-respondent,

Empire Kosher Poultry, Inc., sued herein as Empire Food,

Corp., defendant-third-party plaintiff-respondent;

Nosher's Heaven, Inc., et al., defendants third-party

defendants-appellants.

Supreme Court, Appellate Division,

Second Department.

June 26, 1989.

Chesney, Murphy & Moran, Baldwin (Jerome C. Murphy, on the brief), for defendants third-party defendants-appellants.

Zuller & Bondy, New York City (Bruce Montague, of counsel), for plaintiff-respondent.

Rivkin, Radler, Dunne & Bayh, Uniondale (Michael S. Cohen, of counsel), for defendant-third-party plaintiff-respondent.

Before BROWN, J.P., and KUNZEMAN, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants and third-party defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O'Shaughnessy, J.), dated March 1, 1988, as (1) granted the plaintiff's motion for leave to serve an amended complaint asserting a cause of action to recover damages for wrongful death, and (2) denied, in part, their cross motion for summary judgment dismissing the complaint insofar as it is asserted against them and the third-party complaint against them.

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof which denied that branch of the cross motion which was to dismiss the derivative causes of action as against the appellants and substituting therefor a provision granting that branch of the cross motion, and (2) deleting the provision thereof which denied that branch of the cross motion which was to dismiss the complaint and third-party complaint as against the two individual appellants and substituting therefor a provision granting that branch of the cross motion, and severing the action and third-party action as against those parties; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the appellants payable by the plaintiff-respondent and the defendant and third-party plaintiff-respondent, appearing separately and filing separate briefs.

We agree with the Supreme Court that the error in designating the decedent Sol Kramer as a plaintiff was a mere mistake or irregularity which did not substantially prejudice the appellants. Therefore, the court did not improvidently exercise its discretion in retroactively correcting the misdescription (see, CPLR 2001; accord, Rosenberg v. Caban, 16 N.Y.2d 905, 264 N.Y.S.2d 697, 212 N.E.2d 151; Wichlenski v. Wichlenski, 67 A.D.2d 944, 946, 413 N.Y.S.2d 211; Heimer v. Johnson, Drake & Piper, 26 A.D.2d 547, 270 N.Y.S.2d 870).

However, the court erred in failing to grant summary judgment in favor of the appellants dismissing Isabel Kramer's derivative causes of action. Her causes of action to recover damages for loss of consortium and medical expenses are derivative of her deceased husband's personal injury action (see, Liff v. Schildkrout, 49 N.Y.2d 622, 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288; Rothfarb v. Brookdale Hosp., 139 A.D.2d 720, 722-723, 527 N.Y.S.2d 473; Scharfman v. National Jewish Hospital and Research Center, 122 A.D.2d 939, 506 N.Y.S.2d 90). Such causes of action are...