Sokoloff v. Schor

• Decision Date: 21 August 2019
• Docket Number: 2016–09791,Index No. 100056/16
• Parties: Margot SOKOLOFF, etc., appellant, v. Jonathan SCHOR, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 120

109 N.Y.S.3d 58

Margot SOKOLOFF, etc., appellant,

v.Jonathan SCHOR, etc., et al., respondents.

2016–09791

Index No. 100056/16

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

Argued—April 5, 2019

August 21, 2019

Krentsel & Guzman, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondents Jonathan Schor and Staten Island University Hospital.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondents Marisa Berry and Carmel Richmond Healthcare and Rehabilitation Center.

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

OPINION & ORDER

DILLON, J.P.

I. Relevant Facts

In December 2013, Warren Sokoloff (hereinafter the decedent) and his spouse, Margot Sokoloff (hereinafter the plaintiff; hereinafter together the plaintiffs), commenced an action, inter alia, to recover damages for medical malpractice, etc., in the Supreme Court, Richmond County, under Index No. 102093/13 (hereinafter the 2013 action). The plaintiffs alleged that the defendants Jonathan Schor, Marisa Berry, Carmel Richmond Healthcare and Rehabilitation Center (hereinafter Carmel Richmond), and Staten Island University Hospital (hereinafter SIUH; hereinafter collectively the defendants) committed medical malpractice during the course of care and treatment provided to the decedent between November 9, 2012, and December 28, 2012.

Unbeknownst to the plaintiffs' counsel, the decedent died on September 30, 2013, approximately three months prior to the commencement of the 2013 action. On June 22, 2015, the Surrogate's Court, Richmond County (Robert J. Gigante, S.), issued to the plaintiff a "Decree Granting Limited Administration" authorizing the plaintiff to pursue, compromise, and enforce any judgment for any cause of action that existed on behalf of the decedent. The plaintiffs' counsel did not learn of the decedent's death until sometime between February 2015 and mid-July, 2015. No meaningful activity was accomplished in the prosecution of the 2013 action from its commencement on December 26, 2013, to mid-August, 2015.

On August 18, 2015, the plaintiff, in her appointed capacity as the administrator of the decedent's estate, moved in the 2013 action pursuant to CPLR 1015 and 1021 to substitute herself as a party plaintiff on behalf of the decedent's estate. During a court conference in the 2013 action on September 28, 2015, the Supreme Court was made aware that the decedent had died prior to the commencement of the 2013 action and stated, "[t]his lawsuit is a complete nullity." The court invited the defendants to respond to the plaintiff's substitution motion by moving to dismiss the complaint, stating "I will be granting that ... motion to dismiss the complaint." In October 2015, Berry and Carmel Richmond moved, and Schor and SIUH separately moved, pursuant to CPLR 3211(a)(3) to dismiss the complaint in the 2013 action insofar as asserted against each of them for lack of capacity and, alternatively, for failing to timely seek a substitution of a proper party plaintiff under CPLR 1021. Berry and Carmel Richmond also sought an award of costs and sanctions pursuant to 22 NYCRR 130–1.1 for having had to defend the 2013 action even though the decedent died prior to the commencement of that action.

In late October 2015, before the Supreme Court decided the plaintiff's motion to substitute and the defendants' separate motions to dismiss the complaint in the 2013 action, the plaintiff commenced a second action (hereinafter the 2015 action) under Index No. 101318/15. The 2013 action and the 2015 action were identical to one another in all essential respects but for the decedent being a plaintiff in the 2013 action and his estate being a plaintiff in the 2015 action. Berry and Carmel Richmond moved, and Schor and SIUH separately moved, pursuant to CPLR 3211(a)(4) to dismiss the 2015 action on the ground that there was a prior action pending, and pursuant to CPLR 214–a and 3211(a)(5) to dismiss the 2015 action on the ground that the 2015 action was untimely.

On November 6, 2015, after the defendants had made their respective motions to dismiss the 2013 action and the 2015 action, but before those motions had been decided, the Supreme Court held another conference in the 2013 action. The court discussed with all counsel the merits of the motions in the 2013 action. Near the conclusion of the conference, the court again described the 2013 action as a "nullity" that needed to be dismissed because the decedent was already deceased when the action was commenced.^* The parties negotiated the withdrawal of any extant requests for sanctions and costs. The court then stated that it was dismissing the 2013 action and denying the plaintiff's motion for substitution. The defendants' attorneys were directed to draft a written order memorializing the court's oral decision, and the court signed the order the same day. The signed order dated November 6, 2015, failed to set forth any reason for directing the dismissal of the 2013 action.

For reasons that are discussed in detail below, and contrary to the stated view of the Supreme Court at the time, the commencement of the 2013 action was not, in fact, a "nullity" due to the pre-commencement death of the decedent, but was, instead, an action merely subject to dismissal for lack of capacity under CPLR 3211(a)(3).

In an affirmation in opposition to the defendants' respective motions to dismiss the complaint in the 2015 action, the plaintiff's counsel conceded that the 2015 action was "technically" improper at the time it was commenced because the 2013 action had not yet been dismissed by the Supreme Court. However, the plaintiff's counsel maintained that the 2015 action was timely because it was commenced within six months from the termination of the 2013 action as permitted by CPLR 205(a), and the termination of the 2013 action was not for any reason that would have precluded the commencement of a new action under the statute.

While the motions to dismiss the 2015 action were pending, the plaintiff, perhaps anticipating the termination of the 2015 action and mindful of the six-month deadline of CPLR 205(a), commenced the instant action on January 15, 2016, under Index No. 100056/16. The complaint in this action was identical in all essential respects to the complaints in the 2013 action and the 2015 action.

In early February 2016, Schor and SIUH moved, and Barry and Carmel Richmond separately moved, pursuant to CPLR 3211(a)(4) to dismiss this action on the ground there was another action pending, and alternatively, pursuant to CPLR 3211(a)(5) on the ground that the action was time-barred. Specifically, as to the alternative ground for dismissal, the defendants argued that since the decedent's care and treatment had concluded by December 28, 2012, at the latest, the commencement of this action on January 15, 2016, was beyond the 2½ year statute of limitations governing medical malpractice actions under CPLR 214–a. The defendants argued that the plaintiff was not entitled to the six-month grace extension of CPLR 205(a) measured from the termination of the 2013 action, because, according to the defendants, the Supreme Court directed the dismissal of the 2013 action due to the plaintiff's neglect in prosecuting that action.

All counsel appeared before the Supreme Court on April 1, 2016, for oral argument of the motions that were pending to dismiss both the 2015 action as well as this action, at which time the history of the litigations was discussed. In an order dated June 6, 2016, the court, in effect, granted the defendants' motions to dismiss the complaint in this action as time-barred. The court explained that while the order directing the dismissal of the 2013 action did not contain the underlying reasons for the termination of the 2013 action, "the 2013 action was dismissed for failure to prosecute." The court reasoned that because the 2013 action was dismissed on the ground of the plaintiff's neglect in prosecuting it, CPLR 205(a) does not apply in this action, and without the six-month extension afforded by CPLR 205(a), this action is time-barred. On August 23, 2016, a judgment was entered in this action in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.

In an order dated June 30, 2016, appealed from by the plaintiff in a companion appeal (Appellate Division Docket No. 2016–09794; decided herewith), the Supreme Court granted the defendants' motions to dismiss the complaint in the 2015 action, on the ground that the six-month period for commencing the 2015 action beyond the statute of limitations was not available to the plaintiff, as the 2015 action had been commenced before the 2013 action was dismissed.

II. Legal Analysis

The appeals have been heard and are being decided jointly. They bring to this Court a cornucopia of procedural issues including the substitution of parties, the effect of prior actions pending, the interpretation of the savings provision of CPLR 205(a), and the discretion of courts to correct mistakes in earlier orders under CPLR 5019. For reasons set forth below, we reverse the judgment and reinstate the complaint in this action.

A. The Applicability of CPLR 205(a)

The statute of limitations for actions sounding in medical malpractice is 2½ years (see CPLR 214–a ). The limitations period is measured from the date of the negligent act, omission, or failure complained of (see CPLR 214–a ; Rodriguez v. Manhattan Med. Group, 77 N.Y.2d 217, 220, 566 N.Y.S.2d 193, 567 N.E.2d 235 ). However, our law recognizes various tolls and extensions in diverse sections of CPLR article 2 that permit, when applicable, the commencement of actions beyond the bright lines of the limitations periods. The...