Robles v. Brooklyn-Queens Nursing Home, Inc.

• Decision Date: 16 September 2015
• Docket Number: 2014-06902, Index No. 889/13.
• Citation: 16 N.Y.S.3d 275,131 A.D.3d 1032,2015 N.Y. Slip Op. 06797
• Parties: Felix ROBLES, etc., respondent, v. BROOKLYN–QUEENS NURSING HOME, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1032

16 N.Y.S.3d 275

2015 N.Y. Slip Op. 06797

Felix ROBLES, etc., respondent

v.BROOKLYN–QUEENS NURSING HOME, INC., et al., appellants.

2014-06902, Index No. 889/13.

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

Sept. 16, 2015.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y. (Frank Dumont and Thomas Witting of counsel), for appellants Brooklyn–Queens Nursing Home, Inc., and Brooklyn Queens Nursing Home.

Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Jacqueline Mandell and David Bloom of counsel), for appellant Kingsbrook Jewish Medical Center.

Sheryl R. Menkes (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for medical malpractice, negligence, and wrongful death, the defendants Brooklyn–Queens Nursing Home, Inc., and Brooklyn Queens Nursing Home appeal, and the defendant Kingsbrook Jewish Medical Center separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated May 28, 2014, as denied those branches of their respective motions which were pursuant to CPLR 3211(a) to dismiss certain causes of action insofar as asserted against them as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

Prior to being appointed administrator of the decedent's estate, the plaintiff commenced two prior medical malpractice actions in 2011 and 2012, respectively. Those actions were dismissed on the ground that the plaintiff lacked capacity to sue. After he was issued letters of administration, while the motions to dismiss the first two actions were pending, the plaintiff commenced the instant, third medical malpractice action. The defendants Brooklyn–Queens Nursing Home, Inc., and Brooklyn Queens Nursing Home moved, and the defendant Kingsbrook Jewish Medical Center (hereinafter collectively the appellants) separately moved, inter alia, to dismiss certain causes of action insofar as asserted against them as time-barred. The Supreme Court denied the subject branches of their motions.

The appellants contend that the plaintiff is not entitled to the benefit of the six-month extension for pleading pursuant to CPLR 205(a) because the instant action was commenced prior to the dismissal of the two earlier actions. This contention is improperly raised for the first time on appeal, and therefore, is not properly before this Court (see Koziar v. Grand Palace Rest., 125 A.D.3d 607, 607, 3 N.Y.S.3d 96 ; Gaetano Dev. Corp. v. Lee, 121 A.D.3d 838, 840, 994 N.Y.S.2d 641 ; Talamas v. Metropolitan Transp. Auth., 120 A.D.3d 1333, 1333, 993 N.Y.S.2d 102 ). The plaintiff did not have the opportunity to address this argument and the Supreme Court did not have the opportunity to consider it (see Fusco v. City of New York, 71 A.D.3d 1083, 1084, 900 N.Y.S.2d 81 ; Matter of Mercury Ins. Group v. Ocana, 46 A.D.3d 561, 846 N.Y.S.2d 633 ; Sarva v. Chakravorty, 34 A.D.3d 438, 439, 826 N.Y.S.2d 74 ). An issue may not be raised for the first time on appeal where it “could have been obviated or cured by factual showings or legal countersteps” in the trial court (Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920, 255 N.E.2d 158 ). Had this argument been raised in the Supreme Court, the plaintiff would have been entitled to the benefit of the six-month extension saving provision of CPLR 205(a) and would have been granted an opportunity to commence a...