TULIS v. NYACK HOSPITAL

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Supreme Court, Appellate Division, Second Department, New York.

Mark TULIS, etc., appellant, v. NYACK HOSPITAL, respondent, et al., defendant.

Decided: April 24, 2000

CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, LEO F. McGINITY and NANCY E. SMITH, JJ. Fotopoulos, Rosenblatt, Green & Frasciello, New York, N.Y. (Giulio S. Frasciello of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Keith Sullivan of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated May 20, 1999, which granted the motion of the defendant Nyack Hospital to dismiss the complaint insofar as asserted against it as time-barred.

ORDERED that the order is reversed, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the respondent.

A prior medical malpractice action had been timely commenced by Frederick Drobin against the defendants.   That action was subsequently dismissed on the ground that he lacked the capacity to sue as his causes of action vested in the bankruptcy trustee.   Within six months after the prior action was dismissed, the plaintiff, Mark Tulis, commenced this action in a representative capacity on behalf of Drobin's bankruptcy estate.   We agree with the plaintiff that the six-month extension embodied in CPLR 205(a) applies and, therefore, this action was erroneously dismissed as time-barred (see, Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 252, 434 N.Y.S.2d 130, 414 N.E.2d 632;  George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 179, 417 N.Y.S.2d 231, 390 N.E.2d 1156;  Pinto v. Ancona, 262 A.D.2d 472, 692 N.Y.S.2d 128).

MEMORANDUM BY THE COURT.

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