EVELYN ARTIS v. THE BROOKDALE HOSPITAL MEDICAL CENTER (2026)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review:

NYSCEF #s: Seq. 1: 4-10, 11-30, 52-56

Seq. 2: 31-50, 57-61, 69

Seq. 3: 62-67, 70

Plaintiff moves for an Order, pursuant to CPLR 3215, directing a default judgment against Defendant The Brookdale University Hospital and Medical Center a/k/a The Brookdale Hospital Medical Center ("Brookdale") (Seq. No. 1).

Defendant Brookdale opposes Plaintiff's motion and cross moves to dismiss the Complaint pursuant to CPLR 3211 (a) (4) on the grounds that there is a pending action asserting the same claims, and to dismiss the Complaint for lack of personal jurisdiction and failure to timely service process pursuant to CPLR 3211 (a) (8) and CPLR 306-b, and/or to dismiss the cause of action for wrongful death as time barred by the statute of limitations pursuant to CPLR 3211 (a) (5) and EPTL § 5-4.1 (1). In the alternative, Defendant Brookdale also moves to extend their time to serve an answer. (Seq. No. 2.)

Plaintiff opposes Defendant's cross motion and further cross moves for an Order, pursuant to CPLR 306-b, granting an extension of time to serve Defendant Brookdale (Seq. No. 3). Defendant opposes the cross motion.

Plaintiff's Decedent, Evelyn Artis, first commenced a medical malpractice action against Brookdale arising from the same events, transactions, and occurrences on March 6, 2020, under Index No. 505685/2020 (Action #1). Subsequently, Ms. Artis passed away in April 2020 and the case was stayed.

In February 2024, Plaintiff moved to amend the caption and substitute the administrator of Decedent's estate in Action #1. Defendant cross moved to dismiss the action for failure to substitute the administrator within a reasonable time. In a decision and order dated May 31, 2024, the prior assigned justice denied Plaintiff's motion and granted Defendant's cross motion, dismissing the Complaint pursuant to CPLR 1021.

CPLR 1021 provides that

"If the event [death] requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate."

Additionally, CPLR 205 (a) allows a six-month period for a plaintiff or the plaintiff's administrator to recommence an action that was timely commenced and "terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits." CPLR 205 (a) expressly states that to be deemed a dismissal for neglect to prosecute, the judge must "set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

The dismissal order of Action #1 on May 31, 2024 did not set forth specific conduct constituting a "general pattern of delay" and neglect to prosecute. The Order does not state that the dismissal was "with prejudice," nor make reference that the dismissal is on the merits. While that Order is pending appeal, this Court has no other guidance but the plain wording of the Order of May 31, 2024. Therefore, based upon the wording of the Order and pursuant to CPLR 1021 and 205(a), the Court finds that Plaintiff (Decedent's administrator) was entitled to commence this new action on August 2, 2024 within six months of that dismissal.

CPLR 3211 (a) (4) provides that an action may be dismissed as justice requires when "there is another action pending between the same parties for the same cause of action." As discussed above, the prior action between these parties for the same cause of action was dismissed in its entirety. Notwithstanding Plaintiff's appeal of that dismissal, that action is no longer "pending," and there is no reason to dismiss the new action as duplicative. Accordingly, the part of Defendant's cross motion (Seq. No. 2) seeking to dismiss pursuant to CPLR 3211 (a) (4) is denied.

Turning to the statute of limitations, Defendant argues that Plaintiff's newly asserted claim for wrongful death is time barred, as this action was commenced more than two years after Decedent's death (see EPTL § 5-4.1). The Court notes that the COVID-19 toll on statutory filing deadlines was in effect at the time of Decedent's death, and therefore the statute of limitations did not begin to run until November 3, 2020 (see Ruiz v Sanchez, 219 AD3d 1363, 1363-1364 [2d Dept 2023]). Regardless, the wrongful death claim expired on or about November 3, 2022, and this action was commenced over one year later.

In opposition, Plaintiff argues that the wrongful death claim should be deemed timely because it arises from the same alleged malpractice of Action #1. However, wrongful death is a distinct cause of action brought by a deceased person's estate on behalf of their beneficiaries. In contrast to personal injury claims of a deceased person, which may be "continued by the personal representative of the decedent" after their death, wrongful death claims "belong to a decedent's distributees rather than the estate standing in place of the decedent," with damages based on "the pecuniary loss suffered by the individual distributees as a result of decedent's death" (Heslin v County of Greene, 14 NY3d 67, 75 [2010]). In addition, there is no support for a finding that the new wrongful death claim "relates back" to the date of the claims in Action #1, as Plaintiff did not advance that argument and no evidence was submitted that Decedent's death arose from the same injuries as her initial Complaint.

Plaintiff argues that the wrongful death claim should be deemed timely, pursuant to CPLR 205 (a), but the case cited by Plaintiff to support this argument was based on a very different set of facts and procedural background (Kovacs v Shee, 252 AD3d 616 [2d Dept 2026]). In Kovacs, the wrongful death claim was asserted in the first action, but the plaintiff was a "proposed administrator" of the decedent's estate who lacked legal capacity. After that action was dismissed, the claims were revived in a second action, and the caption was changed to reflect a new administrator of the estate. The Second Department affirmed this Court's decision in that case with respect to the application of CPLR 205 (a), because the medical malpractice and wrongful death claims were timely asserted in the first action, and although a different administrator was appointed, "the real party of interest — the decedent's estate — was the same in both actions." (id.) Further, as relevant here, the Second Department found that the action was "not seeking to enforce any rights separate and independent from those asserted in the first action" (id.). Claims for both wrongful death and non-wrongful death damages (i.e., conscious pain and suffering) were asserted in the first Kovacs action, which was dismissed due to defects in naming the proper representative of the estate.

Here, in contrast to Kovacs, there was never a wrongful death claim in Action #1, which Decedent commenced in her individual capacity. CPLR 205 (a) allows her administrator to revive the personal injury claims from that action which survived her death, "standing in place of the decedent" (Heslin at 75). It does not allow the estate to seek to enforce the "separate and independent" rights of the distributees to recover wrongful death damages, which were not asserted in Action #1. For this reason, the part of Defendant's cross motion (Seq. No. 2) seeking to dismiss the wrongful death claim as time barred is granted.

Finally, with respect to the personal jurisdiction issue, Plaintiff submitted an affidavit of service on Claudette Wall, a purported "authorized legal agent" to accept service on behalf of Brookdale. Defendant submitted an affidavit from Steve J. Deluca, a Senior Vice President/Chief Risk Officer associated with Brookdale, who avers that this individual is not authorized to accept service.

Based on all the papers submitted in support and opposition to the motion and cross motions, and the oral argument before the undersigned on September 9, 2026, the Court finds that proper service has not been effectuated on Brookdale, and Plaintiff's motion for a default judgment (Seq. No. 1) is denied.

Notwithstanding, the court has discretion to grant an extension of the time to serve defendants in the interest of justice, pursuant to CPLR 306-b. When applying the broad "interest of justice" standard, the Court of Appeals has affirmed that "a court may consider any relevant factor before making its determination" and "no one factor is determinative" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 106 [2001]). Here, in the interest of justice and based on the totality of the circumstances, including the fact Defendant Brookdale has been on notice of the claims previously asserted in Action #1 since 2020, Plaintiff's cross motion (Seq. No. 3) seeking an extension of time to serve Defendant pursuant to CPLR 306-b is granted.

Plaintiff shall serve the Summons and Complaint on Defendant Brookdale within 120 days of the date of this Order, and Defendant Brookdale shall serve and file their answer in accordance with the CPLR.

Accordingly, it is hereby:

ORDERED that Plaintiff's motion (Seq. No. 1) for a default judgment against Defendant Brookdale is denied; and it is further

ORDERED that the part of Defendant Brookdale's cross motion (Seq. No. 2) seeking to dismiss Plaintiff's wrongful death claim as time barred by the statute of limitations is granted; and it is further

ORDERED that the part of Defendant Brookdale's cross motion (Seq. No. 2) seeking to dismiss Plaintiff's Complaint as duplicative pursuant to CPLR 3211 (a) (4) is denied; and it is further

ORDERED that the part of Defendant Brookdale's cross motion (Seq. No. 2) seeking to dismiss Plaintiff's Complaint for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8) and CPLR 306-b is denied; and it is further

ORDERED that Plaintiff's cross motion (Seq. No. 3) seeking an extension of time to serve the Summons and Complaint on Defendant Brookdale is granted; and it is further

ORDERED that Plaintiff shall serve the Summons and Complaint on Defendant Brookdale within 120 days of this Order; and it is further

ORDERED that the part of Defendant Brookdale's cross motion (Seq. No. 2) seeking an extension of time to serve their answer is denied as moot; and it is further

ORDERED that Defendant shall serve and file their Answer in accordance with the CPLR.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

Consuelo Mallafre Melendez, J.