Phillips v. Bovis Lend Lease

• Decision Date: 13 February 2013
• Parties: Grafton PHILLIPS, appellant, v. BOVIS LEND LEASE, et al., defendants, Society of New York Hospital, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 698
960 N.Y.S.2d 140
2013 N.Y. Slip Op. 00899

Grafton PHILLIPS, appellant,
v.
BOVIS LEND LEASE, et al., defendants,
Society of New York Hospital, Inc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 13, 2013.

G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellant.

Cornell Grace, P.C., New York, N.Y. (Keith D. Grace, Janet O'Connor Cornell, and Sam Baharvar of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

[103 A.D.3d 698]In an action to recover damages for personal injuries, the [103 A.D.3d 699]plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), entered February 11, 2011, as denied his motion for leave to enter a default judgment against the defendant Society of the New York Hospital, Inc., upon that defendant's default in appearing or answering the complaint, and granted the, in effect, converted cross motion of the defendant Society of the New York Hospital, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

[960 N.Y.S.2d 141]

ORDERED that the order is affirmed insofar as appealed from, with costs.

On November 29, 2006, the plaintiff, an employee of New York Presbyterian Hospital, allegedly was injured at work when he tripped and fell over a wire strung across his path. At the time of the accident, construction was taking place at the premises where the plaintiff was working.

The plaintiff commenced this action to recover damages for personal injuries against Bovis Lend Lease, Universal Building Supply, Society of the New York Hospital, Inc. (hereinafter the Society), and WDF, Inc. All of the defendants, except the Society, answered the complaint.

Counsel for the Society advised the plaintiff's counsel that the plaintiff had improperly named the Society as a defendant. She explained that the Society was no longer in existence, having merged with Presbyterian Hospital in the City of New York in 1998 to form New York Presbyterian Hospital (hereinafter New York Presbyterian). An affidavit was proffered to that effect from the Director of Finance of New York Presbyterian. The Society's counsel also told the plaintiff's counsel that New York Presbyterian had not been served with the complaint and that the plaintiff could not maintain this action against New York Presbyterian, the Society's successor-in-interest, since New York Presbyterian was...