Ross v. Jam. Hosp. Med. Ctr.

• Decision Date: 05 November 2014
• Citation: 2014 N.Y. Slip Op. 07490,996 N.Y.S.2d 118,122 A.D.3d 607
• Parties: Steven W. ROSS, appellant, v. JAMAICA HOSPITAL MEDICAL CENTER, et al., respondents.
• Court: New York Supreme Court — Appellate Division

?122 A.D.3d 607
996 N.Y.S.2d 118
2014 N.Y. Slip Op. 07490

Steven W. ROSS, appellant,
v.
JAMAICA HOSPITAL MEDICAL CENTER, et al., respondents.

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

Nov. 5, 2014

Affirmed.

Douglas A. Emanuel, South Salem, N.Y., for appellant.

Martin Clearwater & Bell, LLP, New York, N.Y. (Stewart G. Milch, Thomas A. Mobilia, Jacqueline D. Berger, and Iryna Krauchanka of counsel), for respondent Jamaica Hospital Medical Center.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling and Susan Ulrich of counsel), for respondent Maria Cipollone.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), dated September 19, 2012, which granted the motion of the defendant Jamaica Hospital Medical Center pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred, and (2) an order of the same court dated September 28, 2012, which granted the motion of the defendant Maria Cipollone pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.

ORDERED that the orders are affirmed, with one bill of costs.

The plaintiff originally commenced a medical malpractice action against the defendants Jamaica Hospital Medical Center and Maria Cipollone by filing a summons with notice of action in the Supreme Court, Queens County, on December 3, 2010. The summons with notice of action alleged that the plaintiff sustained serious and permanent personal injuries on June 7, 2008. In an order entered August 17, 2011, the Supreme Court dismissed the action due to the plaintiff's failure to provide a complaint after a demand was made pursuant to CPLR 3012(b).

The plaintiff commenced this action against the defendants by filing a summons

[996 N.Y.S.2d 119]

and complaint in the Supreme Court, Queens County, on February 23, 2012. The defendants separately moved to dismiss the complaint insofar as asserted against each of them on the ground that the statute of limitations had run. The Supreme Court granted both motions, and the plaintiff appeals.

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the...