holding that action for wrongful death was governed by two-year period of limitation for commencement of wrongful death actions, and not by two and one-half-year period applying to medical malpractice actions, notwithstanding fact that death allegedly resulted from medical malpracticeSummary of this case from Miller v. Estate of Sperling
September 27, 1985
Appeal from the Supreme Court, Herkimer County, Donovan, J.
Present — Dillon, P.J., Callahan, Denman, Boomer and Pine, JJ.
Order and judgment unanimously affirmed, without costs. Memorandum: The second cause of action in the complaint is governed by the two-year period of limitation for the commencement of a wrongful death action (EPTL 5-4.1) and not by the 2 1/2-year period applying to an action for medical malpractice (CPLR 214-a), notwithstanding the fact that the death allegedly resulted from medical malpractice (Morano v St. Francis Hosp., 100 Misc.2d 621; Baxter v Zeller, 42 Or. App. 873, 601 P.2d 902). An action for wrongful death, regardless of the cause, did not exist at common law and is solely a creation of statute (Ratka v St. Francis Hosp., 44 N.Y.2d 604). The statute creating the cause of action (EPTL 5-4.1) contains its own period of limitation. Had the Legislature intended that death actions caused by malpractice be subject to the period of limitation applicable to malpractice actions, it could have so provided.