Quintana v Wallace

[*1] Quintana v Wallace 2007 NY Slip Op 51039(U) [15 Misc 3d 1139(A)] Decided on May 23, 2007 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2007
Supreme Court, Nassau County

Herman Quintana, as Administrator of the Estate of Emma Quintana and Herman Quintana, Individually, Plaintiff(s),

against

Henrietta Wallace, Frances Stern and Marci Ostroff, Defendant(s).



12135/06



Podlofsky, Hill, Orange & Modzelewski, LLP

Attn: James Modzelewski, Esq.

Attorneys for Plaintiffs

98 Cutter Mill Road, Suite 299 N

Great Neck, NY 11021

Shaub, Ahmuty, Citrin & Spratt, LLP

Attn: Regina Sagesser, Esq.

Attorneys for Defendants

1983 Marcus Avenue

Lake Success, NY 11042-1056

Thomas P. Phelan, J.

Motion by defendants for an order, inter alia, dismissing plaintiffs' complaint pursuant to CPLR 3211(a)(5) and CPLR 205 is granted.

Cross-motion by plaintiffs for an extension of time to serve defendants pursuant to CPLR 306-b is denied.

Plaintiffs bring this action alleging causes of action for medical malpractice, wrongful death and loss of services arising out of defendants' alleged failure to diagnose breast cancer during the period between September 17, 1993 through January 3, 1994. Decedent, Emma Quintana, died on March 23, 1996.

The within action was commenced on July 31, 2006 with the filing of plaintiffs' complaint (see [*2]CPLR 304), long after the applicable Statutes of Limitations had passed (see CPLR 214-a and EPTL 5-4.1).

Plaintiffs bring this action, however, within 6 months of dismissal of an earlier related action for medical malpractice and loss of services commenced in March, 1996 by decedent and plaintiff (Quintana v. Wallace, index #6609/96). Plaintiffs therefore contend that the within action is timely pursuant to the provisions of CPLR 205(a). CPLR 205(a) permits a party, in certain instances, to commence a new action within 6 months of a dismissal of an action arising out of the same occurrence. Specifically exempted from qualification for this 6-month extension are, among others, actions dismissed "for neglect to prosecute".

At issue is whether the dismissal of the 1996 action for failure to timely substitute a representative of decedent's estate pursuant to CPLR 1021 (short form order dated January 30, 2006, Quintana v. Wallace, index #6609/06 [Mahon, J.]) constitutes a dismissal for neglect to prosecute.

CPLR 1021 permits dismissal when an event requiring substitution occurs before final judgment "and substitution is not made within a reasonable time". Further, "if the event requiring substitution is the death of a party, and timely substitution has not been made, the court before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed" (CPLR 1021).

In view of same, it is questionable whether, under any circumstances, dismissal of an action pursuant to CPLR 1021 for failure to make timely substitution following death of a party could be found to have not been premised upon a neglect to prosecute (see 1 Weinstein-Korn-Miller, NY Civ. Prac. ¶1021.08).

The circumstances here are especially compelling since, as noted by Justice Mahon, there was no activity in the 1996 action for the period between the May 18, 1998 substitution of plaintiff Herman Quintana as Administrator of the Estate of decedent and a motion by plaintiffs to effectuate substitution first served by plaintiffs on January 4, 2005 (short form order dated May 2, 2005, Quintana v. Wallace, index #6609/96 [Mahon, J.]).

Plaintiffs' neglect did not end there. In its short form order dated May 2, 2005, the court in the 1996 action denied both a motion by plaintiff Herman Quintana to substitute him as Administrator of the Estate of decedent and further denied a cross-motion by defendants to dismiss pursuant to both CPLR 3216(b) and 1021. In denying plaintiffs' motion, the court noted the absence of "any excuse for the approximate 5-1/2 years delay from Herman Quintana's appointment as Administrator to service of the instant application" as well as the absence of an affidavit of merit. Defendants' cross-motion to dismiss was denied given the failure of defendants to serve a 90-day notice pursuant to CPLR 3216(b) and the failure to move by Order to Show Cause as required by CPLR 1021.

Six months later, plaintiffs had not renewed their motion. By contrast, defendants by Order to Show Cause dated October 4, 2005 [Mahon, J.], in effect, renewed that branch of their earlier [*3]motion which sought dismissal pursuant to CPLR 1021. Defendants' renewed motion was granted by short form order dated January 30, 2006 [Mahon, J.].

"[T]he 'neglect to prosecute' exception in CPLR 205(a) applies not only where the dismissal of the prior action is for '[w]ant of prosecution' pursuant to CPLR 3216, but wherever neglect to prosecute is in fact the basis for dismissal (citations omitted)" (Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, 5 NY3d 514, 520).

As plaintiffs' 1996 action was clearly a dismissal for neglect to prosecute, the within action is not timely and is likewise dismissed.

Dismissal is without costs.

This decision constitutes the order and judgment of the court.

Dated:MAY 23, 2007 THOMAS P. PHELAN

J.S.C.

Podlofsky, Hill, Orange & Modzelewski, LLP

Attorneys for Plaintiffs

98 Cutter Mill Road, Suite 299 N

Great Neck, NY 11021

Shaub, Ahmuty, Citrin & Spratt, LLP

Attn: Regina Sagesser, Esq.

Attorneys for Defendants

1983 Marcus Avenue

Lake Success, NY 11042-1056