LOLLY v. BROOKDALE HOSPITAL MEDICAL CENTER (2007)

In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated July 6, 2006, as granted those branches of the defendant's motion which were to dismiss the action pursuant to CPLR 3211(a)(4) and (5), and denied her cross motion for leave to enter a judgment upon the defendant's default in answering.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the action as time barred pursuant to CPLR 3211(a)(5), and substituting therefor a provision denying that branch of the motion as unnecessary;  as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.

 Even assuming that the defendant's motion to dismiss was filed five days late, the Supreme Court providently exercised its discretion is denying the plaintiff's cross motion for leave to enter a default judgment (see Walter v. Rockland Armor & Metal Corp., 140 A.D.2d 335, 528 N.Y.S.2d 82;  see also McCord v. American Golf, 245 A.D.2d 349, 666 N.Y.S.2d 22;  Lichtman v. Sears, Roebuck & Co., 236 A.D.2d 373, 653 N.Y.S.2d 25) and in considering the defendant's motion on its merits (see CPLR 3012[d];  Livigni v. City of New York, 160 A.D.2d 684, 555 N.Y.S.2d 605).

 Despite having been incorrectly named as “The Brookdale University Hospital and Medical Center” in a prior action, entitled Lolly v. Brookdale Univ. Hosp. & Med. Ctr., pending in Supreme Court, Kings County, under Index No. 5241/04, involving the same alleged misconduct, and asserting essentially the same causes of action as those pleaded in the instant complaint, the defendant herein represents that it has, in fact, been defending the prior action, that it has never disclaimed responsibility for the individual employees and residents identified in the prior action, and that “a judgment ultimately entered against The Brookdale University Hospital and Medical Center will have the same effect as a judgment entered against The Brookdale Hospital Medical Center.”   Based on these representations, this action was properly dismissed pursuant to CPLR 3211(a)(4) (see Diaz v. Philip Morris Cos., 28 A.D.3d 703, 705, 815 N.Y.S.2d 109;  White Light Prods. v. On the Scene Prods., 231 A.D.2d 90, 93-94, 660 N.Y.S.2d 568).

The Supreme Court should have denied as unnecessary that branch of the defendant's motion which sought to dismiss the complaint as time barred.

We decline the defendant's request to impose costs or sanctions against the plaintiff.