Petion v. N.Y.C. Health & Hosps. Corp.
| Decision Date | 07 August 2019 |
| Docket Number | 2017–03275,Index No. 31058/09 |
| Citation | 175 A.D.3d 519,109 N.Y.S.3d 426 |
| Parties | Jeremiah Prince PETION, etc., et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 519
109 N.Y.S.3d 426
Jeremiah Prince PETION, etc., et al., Appellants,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents.
2017–03275
Index No. 31058/09
Supreme Court, Appellate Division, Second Department, New York.
Argued - February 21, 2019
August 7, 2019
Ronald Paul Hart, P.C., New York, NY, for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Susan P. Greenberg, Claude Platton, and Nwamaka Ejebe of counsel), for respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Michelle Weston, J.), dated February 17, 2017. The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were pursuant to CPLR 1021 for leave to substitute Jean Petion, as administrator of the estate of Jeremiah Prince Petion, deceased, as a party plaintiff in the action and to amend the caption accordingly, and pursuant to CPLR 3025 for leave to amend the complaint to assert a cause of action to recover damages for wrongful death, and granted the defendants' cross motion to dismiss the complaint pursuant to CPLR 1021.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, those branches of the plaintiffs' motion which were pursuant to CPLR 1021 for leave to substitute Jean Petion, as administrator of the estate of Jeremiah Prince Petion, deceased, as a party plaintiff in the action and to amend the caption accordingly, and pursuant to CPLR 3025 for leave to amend the complaint to assert a cause of action to recover damages for wrongful death are granted, and the defendants' cross motion to dismiss the complaint pursuant to CPLR 1021 is denied.
As an initial matter, since the plaintiff Marie Petion commenced this medical malpractice action in her individual as
well as representative capacity, the Supreme Court should not have directed dismissal of the complaint insofar as the causes of action were brought on her own behalf (see CPLR 1021 ; Vicari v....
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