Duval v Centerlight Health Sys., Inc.

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[*1] Duval v Centerlight Health Sys., Inc. 2019 NY Slip Op 50133(U) Decided on January 25, 2019 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2019
Supreme Court, Bronx County

Geraldine Duval AS ADMINISTRATRIX OF THE ESTATE OF GERALDE DUVAL, Plaintiff,

against

Centerlight Health System, Inc., CENTER FOR NURSING AND REHABILITATION ADULT HEALTHCARE PROGRAM, KESER NURSING AND REHABILITATION CENTER, INC., and BEDFORD CENTER FOR NURSING AND REHABILITATION, Defendants.



24017/18E



Attorney for Plaintiff:

Matthew T. Gammons, Esq.

ROSENBAUM & ROSENBAUM, P.C.

100 Wall Street, 15th Floor

New York, New York 10005

(212) 514-5007

Attorney for Defendant, Keser:

Marco Q. Tedeschi, Esq.

KAUFMAN BORGEST & RYAN, LLP

200 Summit Lake Drive

Valhalla, New York 10595

(914) 449-1000

Attorney for Defendant, Centerlight:

Jenifer V. Turriziani, Esq.

RUBIN SHEELY PATERNITI GONZALEZ KAUFMAN, LLP

420 Lexington Avenue, Suite 1820

New York, New York 10017

(646) 650-5952
Joseph E. Capella, J.

PAPERS/NUMBERED



Notice of Motion Affirmation and Exhibits 1, 2

Answering Affirmation and Exhibits 3

Replying Affirmations and Exhibits 4, 5

Upon the foregoing cited papers, these motions are decided as follows:

The defendants, Centerlight Health System, Inc. and Center for Nursing and Rehabilitation Adult Healthcare Program (Centerlight), and Keser Nursing and Rehabilitation Center and Bedford Center for Nursing and Rehabilitation (Keser), move for dismissal of plaintiff's complaint as time barred, pursuant to CPLR 3211(a)(5). Plaintiff brings this action alleging causes of action for medical malpractice and Public Health Law violations arising out of alleged nursing home negligence that occurred between January and September 2013. Decedent, Geralde Duval, died on September 30, 2013. The within action was commenced on April 6, 2018, two years after the applicable Statutes of Limitations had passed (CPLR 214—a).

Plaintiff brings this action within six months of dismissal of an earlier related action [FN1] for the same alleged medical malpractice and Public Health Law violations commenced on August 18, 2015. The earlier action was dismissed pursuant to CPLR 1021 for failure to substitute. Plaintiff argues that the instant action is timely pursuant to CPLR 205(a), which permits a party, under certain circumstances, to commence a new action within six months of dismissal of an action arising out of the same occurrence. Specifically excluded from this six-month extension are, inter alia, cases dismissed for neglect to prosecute. Here, the issue is whether the dismissal of the 2015 action for failure to timely substitute a representative of decedent's estate pursuant to CPLR 1021 constitutes a dismissal for neglect to prosecute.

As outlined by Justice Brigantti in her 2018 decision/order, despite three so-ordered stipulations directing plaintiff to turn over Letters of Administration, plaintiff failed to do so. The "affirmation of delay" by plaintiff's counsel submitted in response to the Order to Show cause to dismiss did not sufficiently explain the extended delay in providing Letters of Administration that occurred between August 2015 and Spring 2016 and then from November 2016 to May 2017. Justice Brigantti characterized plaintiff's allegations of law office failure as vague, unsubstantiated, and not creditable as a reasonable excuse for delay. Finally, the decision/order noted that as of its writing, plaintiff's counsel had not apprised the court as to whether the Appointment was ever completed.

The neglect to prosecute exception in CPLR 205(a) applies, inter alia, wherever neglect to prosecute is in fact the basis for dismissal. (Andrea v Arnone, 5 NY3d 514 [2005].) In Andrea, the Court of Appeals held that a plaintiff cannot invoke CPLR 205(a) [*2]to revive an action that was previously dismissed for neglect to prosecute, irrespective of whether the dismissal was explicitly based on CPLR 3216 (want of prosecution), or any other provision of the CPLR permitting dismissal for discovery defaults or undue delay (i.e. CPLR 3126 [refusal/failure to comply with discovery orders] or CPLR 3404 [dismissal of abandoned cases]). The Court described the egregious disregard of discovery obligations which formed the basis for the lower court's dismissal of the earlier action and concluded that, in the context of CPLR 205(a), the only relevant issue is whether neglect to prosecute was "in fact the basis for dismissal" of the original action (Id).

Following the decision in Andrea, in 2008 the legislature amended CPLR 205(a) to add language that limits when a dismissal for neglect to prosecute makes the six-month extension unavailable to plaintiffs. The new standard specifies that an order dismissing a case for neglect to prosecute must set forth on the record the conduct constituting the neglect and that such conduct must demonstrate a general pattern of delay. It has repeatedly been held that, under certain circumstances, a dismissal for failure to timely substitute, pursuant to CPLR 1021, falls within the dismissal for neglect to prosecute exception to CPLR 205(a) (Weisman v Fischbach, 111 AD3d 566 [1st Dept 2013] [original action dismissed because plaintiff failed to move to substitute within a reasonable time and no actions had been taken by either party to conduct discovery or otherwise advance the litigation in 16 years]; Rumola v Maimonides, 88 AD3d 781 [2nd Dept 2011] [Supreme Court dismissed previous action, pursuant to CPLR 1021, due to the failure of the persons interested in the decedent's estate to move for substitution during a period of eight years]).

Plaintiff's argument that the neglect to prosecute exception of CPLR 205(a) does not apply to the instant action is erroneous as the prior order clearly outlined a lack of effort by plaintiff to obtain Letters of Administration and pointed to a general pattern of delay in proceeding with the litigation as the basis for dismissal. (Rumola, 88 AD3d 781.) Moreover, whether the prior action was dismissed with prejudice or not has no bearing on whether it was dismissed for neglect to prosecute. (Weisman, 111 AD3d 566.) As plaintiff's 2015 action was dismissed for neglect to prosecute and the CPLR 205(a) six-month extension does not apply, the within action is not timely. The motions are granted and the complaint is dismissed.

Defendants are directed to serve a copy of this decision/order with notice of entry by first class mail upon all parties within 30 days of receipt of same. The County Clerk is directed to enter judgment in favor of defendants. This constitutes the decision and order of this court.



DatedJanuary 25, 2019

________/S/______________

Hon. Joseph E. Capella, J.S.C. Footnotes

Footnote 1:Duval v Centerlight, Sup Ct, Bronx County, March 14, 2018, Brigantti, J., index No. 24578/2015E.