Opinion
12672 [M–3432] Index No. 24017/18E Case No. 2019-1644
12-17-2020
Geraldine DUVAL as Administratrix of the Estate of Geralde Duval, Plaintiff–Appellant, v. CENTERLIGHT HEALTH SYSTEMS, INC., et al., Defendants–Respondents.
Rosenbaum & Rosenbaum, P.C., New York (Matthew T. Gammons of counsel), for appellant. Sheeley LLP, New York (Jon D. Lichtenstein of counsel), for respondents.
Rosenbaum & Rosenbaum, P.C., New York (Matthew T. Gammons of counsel), for appellant.
Sheeley LLP, New York (Jon D. Lichtenstein of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Kern, Oing, Moulton, JJ.
Order, Supreme Court, Bronx County (Joseph Capella, J.), entered January 31, 2019, which granted defendants' motions pursuant to CPLR 3211(a)(5), and dismissed the complaint, unanimously affirmed, without costs.
Plaintiff's action was correctly dismissed as untimely. Her prior action was dismissed for neglect to prosecute, so she cannot avail herself of the six-month period in CPLR 205(a) (see Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 N.Y.3d 514, 520, 806 N.Y.S.2d 453, 840 N.E.2d 565 [2005] ; Weisman, Celler, Spett & Modlin v. Fischbach LLC, 111 A.D.3d 566, 975 N.Y.S.2d 404 [1st Dept. 2013] ). That the prior action was not dismissed with prejudice has no bearing on the fact that it was a neglect to prosecute dismissal (id. ).
Plaintiff's argument that the first dismissal order was wrongly decided because her failure to appoint an administrator was not willful or contumacious was not made below and will thus not be entertained here (see Knox v. St. Luke's Hosp., 140 A.D.3d 501, 32 N.Y.S.3d 488 [1st Dept. 2016] ). In any event, it cannot be said that the court in the first action improvidently exercised its discretion in dismissing it, where plaintiff delayed in obtaining letters testamentary for a period of years in contravention of four orders and so-ordered stipulations (see e.g. Coaxum v. Nor–Topia Serv. Sta., Inc., 101 A.D.3d 485, 954 N.Y.S.2d 870 [1st Dept. 2012] ). Furthermore, rather than appealing or moving to restore the prior dismissal, plaintiff chose to pursue a new cause of action (see Iacono v. Japan Line, 89 A.D.2d 948, 454 N.Y.S.2d 438 [1st Dept. 1982], appeal dismissed 58 N.Y. 1112 [1983] ). Having chartered her own course, plaintiff should now be allowed to suffer its consequence.
M–3432– Motion of defendants to, inter alia, strike the reply brief, denied as moot.