Schwartz v. Montefiore Hospital and Medical Center
| Decision Date | 08 May 2003 |
| Citation | 305 A.D.2d 174,761 N.Y.S.2d 5 |
| Parties | BEVERLY SCHWARTZ, as Administratrix of the Estate of RUTH SCHWARTZ, Deceased, Appellant,<BR>v.<BR>MONTEFIORE HOSPITAL AND MEDICAL CENTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ruth Schwartz commenced this action on or about November 30, 1989, claiming that while a patient at defendant hospital, at the age of 87 and suffering from dementia, she fell out of bed on May 11, 1987 and July 15, 1987, because she was not properly monitored or restrained as directed by her physician, and that she suffered serious injuries as a result.
On May 17, 1994, Ruth Schwartz died at the age of 94. Letters of administration were issued to her daughter Beverly Schwartz on June 27, 1995.
On or about October 23, 2001, a motion was made for an order substituting Beverly Schwartz, as administratrix for Ruth Schwartz, as plaintiff, pursuant to CPLR 1015 (a), and amending the caption accordingly; and for an order extending her time to file the notice of medical malpractice action nunc pro tunc, pursuant to CPLR 3406 (a) and 2004. Plaintiff's counsel explained that the delay in filing a medical malpractice notice and moving for an order of substitution was due, primarily, to "serious health problems that beset my wife and me over the past twelve years; difficulty in obtaining plaintiff's hospital record; and the demise of Ruth Schwartz herself."
Defendant opposed the motion by moving to dismiss the action for failure to effect substitution following decedent's death, as well as for lack of personal jurisdiction and on grounds of untimeliness. Defendant's contentions regarding personal jurisdiction and timeliness were based on its assertion that the person accepting the summons and complaint was neither authorized nor employed by the hospital, and that, thereafter, the summons was not served until after expiration of the 2½-year statute of limitations.
The motion court granted defendant's motion to dismiss to the extent of dismissing the action for failure to effect substitution, noting that in the six years since Beverly Schwartz's June 27, 1995 appointment as administratrix of her mother's estate, "plaintiff's counsel continued to prosecute numerous other cases, including some of which were prosecuted through various stages of appellate practice, during the period of time when he was allegedly disabled from prosecuting this action." Despite plaintiff's prima facie showing of the merits of the action, the motion court agreed with defendant's counsel that "there is an intimate relationship between the merits of an action and the fact that it has been neglected." It added that "[i]t is a certainty that the defendant will be unable to contest the allegations of malpractice through cross-examination of the alleged victim, who is now deceased, and little if any chance that a witness to the occurrence will be located at this very late date."
The court's dismissal of plaintiff's complaint was an...
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