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Zaccoli v. McGinn

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 556 (N.Y. App. Div. 1999)

Opinion

Argued May 14, 1999

June 21, 1999

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated April 27, 1998, which granted the defendants' motion to dismiss the action as time-barred.

James E. Pratt, Garden City, N.Y., for appellants.

Wilson, Elser, Moskowitz, Edelman Dicker, New York, N Y (Lori Rosen Semlies of counsel), for respondents.

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly determined that the plaintiffs' cause of action to recover damages for wrongful death was untimely since it was not asserted within two years after the decedent's death ( see, EPTL 5-4. 1[1]).

Similarly, the court correctly concluded that the dismissal of the plaintiff's original action pursuant to CPLR former 306-b(a) was automatic and self-executing, and occurred 120 days after commencement of the action without the need for any further action by the court ( see, Midamerica Fed. Sav. Bank v. Gaon, 242 A.D.2d 610; Black v. Randall Med. Offs., 237 A.D.2d 110; Long v. Quinn, 234 A.D.2d 520; Matter of Barsalow v. City of Troy, 208 A.D.2d 1144). Moreover, the court properly found that the plaintiffs' attempt to commence a new action pursuant to CPLR former 306-b(b) was unsuccessful, since the plaintiffs failed to file and serve within 120 days after the automatic dismissal ( see generally, Matter of Gershel v. Porr, 89 N.Y.2d 327, 331).

The plaintiffs' contention that their time to commence a new action should have been extended pursuant to CPLR 2004 is not properly before us, since they did not request that relief in the Supreme Court.


Summaries of

Zaccoli v. McGinn

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 556 (N.Y. App. Div. 1999)
Case details for

Zaccoli v. McGinn

Case Details

Full title:DOMINICK ZACCOLI, etc., et al., appellants, v. JOSEPH McGINN, JR., et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 21, 1999

Citations

262 A.D.2d 556 (N.Y. App. Div. 1999)
691 N.Y.S.2d 351

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