Opinion
2001-06082
Argued January 25, 2002.
March 5, 2002.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated June 5, 2001, as granted the cross motion of the defendant Brookdale University Hospital and Medical Center to dismiss the complaint insofar as asserted against it, and denied their motion for an extension of time to serve the complaint upon the defendant Devendra B. Brahmbatt.
K.C. Okoli, New York, N.Y., and Casilda E. Roper-Simpson, Hempstead, N.Y., for appellants (one brief filed).
Douglas B. Stebbins, New York, N.Y. (Steven J. Zaloudek of counsel), for respondent Brookdale University Hospital and Medical Center.
Santangelo, Benvenuto Slattery (James W. Tuffin, Manhasset, N.Y. [Gabriel Mignella] of counsel), for respondent Devendra B. Brahmbatt.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
ORDERED that the order is modified by deleting the provision thereof granting the cross motion of the defendant Brookdale University Hospital and Medical Center and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the complaint is reinstated insofar as asserted against that defendant.
The parties terminated the first action brought by the plaintiffs by execution of a stipulation of discontinuance which stated that the action was discontinued "without prejudice". Contrary to the respondents' contentions and the Supreme Court's determination, this was a sufficiently-expressed statement of intent to commence a new action pursuant to CPLR 205; specific reference to that statute was unnecessary (see, George v. Mt. Sinai Hosp., 47 N.Y.2d 170; Montgomery v. Minarcin, 245 A.D.2d 920; see also, Kingston v. Brooklyn Hosp. Ctr., 278 A.D.2d 283; Matter of Baird, Patrick Co. v. Epstein, 244 A.D.2d 155).
However, the Supreme Court properly denied the plaintiffs' cross motion for an extension of time to serve the defendant Devendra B. Brahmbatt pursuant to CPLR 306-b, since the plaintiffs failed to establish that they were entitled to such an extension of time (see, Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95).
FLORIO, J.P., FEUERSTEIN, O'BRIEN and ADAMS, JJ., concur.