Kole v New York Presbyt. Hosp.

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Kole v New York Presbyt. Hosp. 2017 NY Slip Op 32914(U) December 18, 2017 Supreme Court, Rockland County Docket Number: 030770/2016 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 12/19/2017 07:09 AM INDEX NO. 030770/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -----------------------------------------------------------X GAIL KOLE, AS EXCEUTRIX OF THE ESTATE OF RICHARD L. KOLE, DECEASED AND GAIL KOLE INDIVIDUALLY, ' . , Plaintiff, DECISION -against- AND ORDER MOTION # 1 - MG DC - N ADJ: 2/9/18 THE NEW YORK PRESBYTERIAN HOSPITAL, JOHN CHABOT, M.D. AND MARC BESSLER,M.D., Defendants. -----------------------------------------------------------X Thomas E. Walsh, II, l.S.C. The following Motion (Motion #1)for papers, numbered and Order pursuant Estates, Powers and Trusts Law 95-4.1 Wrongful Death since it was not timely 1 - 3 were considered on Defendant's Notice of to Civil Practice Law and Rules 9 3211(a)(5) dismissing commenced Plaintiff's within Fourth Cause of Action the two year statute PAPERS and alleging of limitations: NUMBERED NOTICE OF MOTION/AFFIRMATION EXHIBITS (A-C) OF MICHAEL N. ROMANO, ESQ./ 1 AFFIRMATION OF ALLAN J. AHEARNE, JR., ESQ. IN OPPOSITION TO MOTION TO DISMISS PLAINTIFF'S CAUSE OF ACTION FOR WRONGFUL DEATH 2 REPLY AFFIRMATION 3 OF MICHAEL N. ROMANO. ESQ. Upon the foregoing This Plaintiff's is a medical death son January Presbyterian papers, the Court now rules as follows malpractice 20, 2014 following Hospital by DefendantJOHN that the medical malpractice and wrongful occurred death a Whipple Surgery CHABOT, M.D. (hereinafter from January 1 1 of 4 action that performed CHABOT). 3, 2014 to January arose out of at The New York Plaintiff alleges 19, 2014. [*FILED: 2] ROCKLAND COUNTY CLERK 12/19/2017 07:09 AM NYSCEF DOC. NO. 25 INDEX NO. 030770/2016 RECEIVED NYSCEF: 12/18/2017 2 2 of 4 [*FILED: 3] ROCKLAND COUNTY CLERK 12/19/2017 07:09 AM INDEX NO. 030770/2016 NYSCEF DOC. NO. 25 Defendant RECEIVED NYSCEF: 12/18/2017 submits that the Defendant wrongful death a personal representative is incorrect on the law. Since representative a wrongful death action Plaintiff tolling within u nti I a representative cannot be commenced S that in a which tolls the if the estate is before is filed, the Plaintiff avers that the right to recover for a wrongful does not arise until the personal representative Further, asserts of the estate must first be appointed, ti me to fi Ie a wrongfu I death action by six (6) months appointed. Plaintiff a personal death action has been named through the issuance of letters. S applies Civil Practice Law and Rules 205 arguing 205 applies to the instant action, and therefore that the six (6) month Plaintiff's wrongful death action is timely and should not be dismissed. In considering Plaintiff's arguments language within the Estates, Powers, Trusts Law death action while a personal representative that a wrongful death action commences S the Court first notes that action already malpractice intervening S is being appointed. The statute clearly indicates upon the "death of the decedent." 205, the Court notes that for commenced. In the action and the wrongful event in a commenced action S the of limitations. delayed a certificate Plaintiff Further, as to Plaintiff's required death action from Civil. commenced death action at the same time, of merit As to Plaintiff's 205 to apply there must be a timely matter which was terminated months to the statute in obtaining instant is no 5-4.1 that allows for a tolling of a wrongful argument that a six (6) month tolling period is applicable to a wrongful Practice Law and Rules there therefore the there was no that adds an additional argument for a medical medical six (6) that the Plaintiff was malpractice action therefore the wrong ful death cause of action does not begin to run until the certificate obtained that is also unpersuasive. The Plaintiff could have commenced the instant allowing all of the causes of action to be timely with a letter to the Court indicating in obtaining a certificate underwent is action the difficulty of merit based on the unique nature of the procedure that the Plaintiff prior to his death. precedent requirement and The Estates, Powers and Trust Law does not contain a condition within in it, as does the medical malpractice 3 3 of 4 statute, which requires the [*FILED: 4] ROCKLAND COUNTY CLERK 12/19/2017 07:09 AM INDEX NO. 030770/2016 NYSCEF DOC. NO. 25 certificate RECEIVED NYSCEF: 12/18/2017 of merit and as such the application to the wrongful death statute Court must grant Defendant's Plaintiff's Complaint is dismissed; arguments are unpersuasive that Notice of Motion in its entirety; the Fourth (Motion and as such the #1) for dismissal of the and it is further Cause of Action for Wrongful Death in Plaintiff's and it is further ORDERED that this matter is scheduled for a conference on FRIDAY FEBRUARY 9, 2018 The foregoing Dated: statute it is hereby is granted ORDERED of another motion. ORDERED that Defendant's Fourth Cause of Action precedent is also incorrect. Based on the foregoing, Accordingly, of the conditions and appearances constitutes New City, ~ December ~, before the undersigned by counsel for the parties are required. the Decision and Order of this Court on Motion #1. York 2017 HON. THOMAS p:nqaJustice TO: THE AHEARNE LAW FIRM, PLLC Attorney for Plaintiffs (via e-file) SLAVIN & SLAVIN, ESQs. (via e-file) MICHAEL N. ROMANO, ESQ. PILKINGTON & LEGGETT, P.e. Attorney for Defendants (via e- file) 4 4 of 4 E. ALSH, II of the Supreme Court

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