Lewis v. Kessler

• Decision Date: 08 November 2004
• Docket Number: 2003-02471.
• Citation: 12 A.D.3d 421,2004 NY Slip Op 08079,784 N.Y.S.2d 574
• Parties: LOUISE LEWIS, Appellant, v. TROY KESSLER, as Administrator of the Estate of ROBERT MARGOLIS, Deceased, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 421

784 N.Y.S.2d 574

2004 NY Slip Op 08079

LOUISE LEWIS, Appellant, v.TROY KESSLER, as Administrator of the Estate of ROBERT MARGOLIS, Deceased, et al., Respondents.

2003-02471.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 8, 2004.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated November 14, 2002, which granted the purported motion of the deceased defendant Robert Margolis to dismiss the complaint insofar as asserted against him pursuant to CPLR 1021 and granted the separate motion of the defendant Jordan S. Josephson for the same relief.

Ordered that on the Court's own motion, Troy Kessler, as the administrator of the estate of Robert Margolis, is substituted for the deceased defendantRobert Margolis, and the caption is amended accordingly; and it is further,

Ordered that the appeal from that portion of the order which granted the purported motion of the deceased defendantRobert Margolis is dismissed, and that portion of the order is vacated; and it is further,

Ordered that so much of the order as granted the motion of the defendantJordan J. Josephson is reversed, on the law and as a matter of discretion, that motion is denied, and the complaint is reinstated insofar as asserted against that defendant; and it is further,

Ordered that one bill of costs is awarded to the appellant.

In view of the relatively brief delay on the part of the plaintiff(see e.g.Rosenfeld v Hotel Corp. of Am.,20 NY2d 25[1967]), and the absence of any showing that the delay prejudiced the defendantJordan S. Josephson(seeEncalada v City of New York,...