Opinion
2013-06-12
Sukhwinderjit SINGH, etc., appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (Bellevue Hospital Center and Queens Hospital Center), et al., respondents.
Bhatia & Associates, PLLC, New York, N.Y. (Satish K. Bhatia of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Edward F.X. Hart of counsel), for respondents.
Bhatia & Associates, PLLC, New York, N.Y. (Satish K. Bhatia of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Edward F.X. Hart of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated December 15, 2011, which denied his motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants and granted the cross motion of the defendants New York City Health and Hospitals Corporation (Bellevue Hospital Center and Queens Hospital Center), Ellie Grossman, and Danielle Williams, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.
ORDERED that the order is affirmed, with costs.
The plaintiff's decedent, Simrandeep Kaur (hereinafter the decedent), died on November 27, 2008, while she was a patient at a hospital operated by the defendant New York City Health and Hospitals Corporation (Bellevue Hospital Center and Queens Hospital Center) (hereinafter the HHC). On December 13, 2010, the plaintiff commenced this action to recover damages for medical malpractice and wrongful death against, among others, the HHC. Thereafter, by notice of motion dated May 9, 2011, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants. The HHC and the defendants Ellie Grossman and Danielle Williams (hereinafter collectively the Hospital defendants) cross-moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the Hospital defendants' cross motion.
A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Benjamin v. Keyspan Corp., 104 A.D.3d 891, 963 N.Y.S.2d 128). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled ( see Shalik v. Hewlett Assoc., L.P., 93 A.D.3d 777, 778, 940 N.Y.S.2d 304), or as to whether the action was actually commenced within the applicable limitations period ( see Williams v. New York City Health & Hosp. Corp., 84 A.D.3d 1358, 923 N.Y.S.2d 908).
In support of their cross motion to dismiss the complaint insofar as asserted against them, the Hospital defendants met their initial burden of establishing, prima facie, that the complaint was time-barred, in that the medical malpractice cause of action was interposed more than 1 year and 90 days after the decedent's death ( seeMcKinney's Unconsolidated Laws of N.Y. § 7401[2] ), and the wrongful death cause of action was interposed more than two years after decedent's death ( seePublic Authorities Law § 2981).
In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled. The plaintiff's contention that the waiting period pursuant to General Municipal Law § 50–h for him to comply with the HHC's examination request before commencing this action tolled the statute of limitations pursuant to CPLR 204(a) is without merit, as the Legislature did not intend to extend the limitations period by the inclusion of that statutory waiting period ( see Baez v. New York City Health & Hosp. Corp., 80 N.Y.2d 571, 577, 592 N.Y.S.2d 640, 607 N.E.2d 787;Cinqumani v. County of Nassau, 28 A.D.3d 699, 701, 814 N.Y.S.2d 663;Mignott v. New York City Health & Hosps. Corp., 250 A.D.2d 165, 171, 680 N.Y.S.2d 565). Likewise without merit is the plaintiff's contention that the period between December 30, 2008, when he filed a petition to obtain limited letters of administration for the decedent's estate, and January 27, 2009, when the Surrogate's Court granted that petition, tolled the limitations period ( see Cancel v. Posner, 82 A.D.3d 575, 918 N.Y.S.2d 492;Wilson v. New York City Health & Hosps. Corp., 36 A.D.3d 902, 903, 829 N.Y.S.2d 178;Public Adm'r of Kings County v. Canada Dry Bottling Co. of N.Y., 16 A.D.3d 397, 397–398, 790 N.Y.S.2d 711;Hammie v. City of New York, 143 A.D.2d 805, 806, 533 N.Y.S.2d 329;cf. Hernandez v. New York City Health & Hosps. Corp., 78 N.Y.2d 687, 578 N.Y.S.2d 510, 585 N.E.2d 822). Therefore, the Supreme Court properly granted the Hospital defendants' cross motion, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.
Further, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants inasmuch as the plaintiff commenced this action after the expiration of the statute of limitations period and, as a result, the filing of the complaint was a nullity ( see Gonzalez v. New York City Health & Hosps. Corp., 29 A.D.3d 369, 370, 815 N.Y.S.2d 53;see also Baptiste v. “John Doe,” 89 A.D.3d 436, 931 N.Y.S.2d 868;see generally Slate v. Schiavone Constr. Co., 4 N.Y.3d 816, 817, 796 N.Y.S.2d 573, 829 N.E.2d 665).
The plaintiff's remaining contentions are without merit.