113 A.D.2d 1023 | N.Y. App. Div. | 1985
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 21A-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 Mise 2d 621; Baxter v Zeller, 42 Ore App 873, 601 P2d 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 NY2d 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. (Appeal from order and judgment of Supreme Court, Herkimer County, Donovan, J.— summary judgment.) Present—Dillon, P. J., Callahan, Den-man, Boomer and Pine, JJ.
