Spatafora v. St. John's Episcopal Hosp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'BRIEN
• Citation: Spatafora v. St. John's Episcopal Hosp., 619 N.Y.S.2d 118, 209 A.D.2d 608 (N.Y. App. Div. 1994)
• Decision Date: 21 November 1994
• Parties: Holly M. SPATAFORA, etc., et al., Appellants, v. ST. JOHN'S EPISCOPAL HOSPITAL, et al., Respondents.

Page 118

619 N.Y.S.2d 118

209 A.D.2d 608

Holly M. SPATAFORA, etc., et al., Appellants, v. ST. JOHN'S EPISCOPAL HOSPITAL, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1994.

David L. Lockard, Farmingdale, and Kosseff & Chaiken, Philadelphia, PA (Robert A. Kossoff and Eric Zajac, of counsel), for appellants (one brief filed).

Bartlett, McDonough, Bastone & Monaghan, Mineola (Richard Paulstone, of counsel), for respondent St. John's Episcopal Hosp.

Wortman, Fumoso, Kelly, DeVerna & Snyder, Hauppauge (Lorraine Berlund Polin, of counsel), for respondents Augustus Mantia, Wei Kao, and John Falon.

Martin, Clearwater & Bell, New York City (Barbara D. Goldberg, of counsel), for respondent Gary Veith.

Before O'BRIEN, J.P., and JOY, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated July 27, 1992, which (1) granted the motion of the defendants Augustus Mantia, Wei Kao, and John Falon, and the separate motion of the defendant Gary Veith for summary judgment dismissing the plaintiffs' causes of action for medical malpractice and wrongful death as time-barred, and (2) granted the motion of the defendant St. John's Episcopal Hospital for summary judgment dismissing the plaintiffs' cause of action for wrongful death as time-barred.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

EPTL 5-4.1 provides that a decedent's personal representative must commence an action to recover damages for wrongful death "within two years after the decedent's death". The plaintiffs' decedent died on October 30, 1988, and the plaintiffs served the summons and complaint on all but one of the defendants on April 16, 1991, and served the final defendant on April 22, 1991, some two-and-a-half years later. The plaintiffs' cause of action to recover damages for wrongful death was therefore properly dismissed as to all defendants (see, e.g., Collins v. Jamaica Hosp., 158 A.D.2d 649, 650, 551 N.Y.S.2d 950; Maldonado v. Long Is. Jewish Med. Center, 156 A.D.2d 431, 548 N.Y.S.2d 548).

All of the defendants were sued in their capacities as medical professionals, on the theory that they failed to properly perform, read and interpret cardiac tests. Because the incompetence alleged is of a specialized medical nature,...