FREEDMAN v. NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS

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

Evelyn FREEDMAN, etc., appellant, v. NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, etc., respondent.

Decided: July 19, 2004

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, REINALDO E. RIVERA, and ROBERT A. LIFSON, JJ. Michael F. Newton, New York, N.Y., for appellant. Vardaro & Helwig, Smithtown, N.Y. (Rosemary E. Martinson of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated December 4, 2002, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5) as time-barred.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff opposed the defendant's motion to dismiss the complaint by asserting that the action was timely commenced pursuant to CPLR 205(a).   She argued that a prior action, in which the decedent, Mary Hyman, was the plaintiff, was dismissed for failure to timely substitute a personal representative, and that the dismissal was intended by the Supreme Court to be without prejudice (see Schuman v. Hertz Corp., 17 N.Y.2d 604, 268 N.Y.S.2d 563, 215 N.E.2d 683, Bailey v. Brookdale Univ. Hosp. & Med. Ctr., 292 A.D.2d 328, 329, 738 N.Y.S.2d 586).   The Supreme Court granted the defendant's motion to dismiss the complaint after determining that the prior action could not be re-commenced pursuant to CPLR 205(a).   We disagree.   Where the defendant has been given timely notice of the claim being asserted by or on behalf of the injured party, an error relating to the identity of the named plaintiff in the original action will not bar recommencement of the action pursuant to CPLR 205(a) (see Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 434 N.Y.S.2d 130, 414 N.E.2d 632;  George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 417 N.Y.S.2d 231, 390 N.E.2d 1156;  McGuire v. Southside Hosp., 301 A.D.2d 505, 506, 753 N.Y.S.2d 380;  Chase Manhattan Bank v. Wolowitz, 272 A.D.2d 428, 429, 708 N.Y.S.2d 342;  Krainski v. Sullivan, 208 A.D.2d 904, 617 N.Y.S.2d 890).

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