KINGSTON v. BROOKLYN HOSPITAL CENTER (2000)

In an action to recover damages for personal injuries based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), entered January 31, 2000, which granted the respective motions of the defendant Brooklyn Hospital Center and the defendants Roberto Anon and Ada Anon to dismiss the complaint insofar as asserted against them as time-barred.

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

The plaintiff's prior action, based on the same transaction as that upon which the present action is based, was dismissed on April 9, 1998, under circumstances evincing a neglect to prosecute (see, Keel v. Parke, Davis & Co., 72 A.D.2d 546, 420 N.Y.S.2d 726, affd. 50 N.Y.2d 833, 430 N.Y.S.2d 51, 407 N.E.2d 1347).   The Supreme Court therefore properly dismissed the present action, holding that it was not commenced within the applicable prescriptive period (see, CPLR 214-a), and also properly determined that the action could not be deemed timely pursuant to CPLR 205(a).

The plaintiff's reliance on Schuman v. Hertz Corp., 17 N.Y.2d 604, 268 N.Y.S.2d 563, 215 N.E.2d 683, is unpersuasive.   Contrary to the facts of that case, the record here does not permit, much less compel, the conclusion that dismissal of the prior action was intended to be without prejudice to the commencement of a second action.   The affirmation submitted by the plaintiff's substitute counsel, in which she asserts that the Justice who dismissed the prior action told her that the dismissal was “without prejudice”, is contradicted by an affirmation of defense counsel, and is not supported by the record.

MEMORANDUM BY THE COURT.