McGuire v. Southside Hospital

753 N.Y.S.2d 380 | N.Y. App. Div. | 2003

—In an action to recover damages for medical malpractice and wrongful death, the defendants appeal from an order of the Supreme Court, Suffolk County (Molla, J.), dated December 17, 2001, which granted the plaintiff’s motion to substitute Rochelle McGuire, as administrator of the estate of Gerard Barrel, for Rochelle McGuire, as proposed administrator of the estate of Gerard Barrel, as the party plaintiff, to the extent of dismissing the action without prejudice to the commencement of a new action pursuant to CPLR 205 (a).

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contention, the Supreme Court correctly dismissed the action without prejudice to the plaintiff recommencing the action pursuant to CPLR 205 (a). Where the defendants have been given timely notice of the claim being asserted by or on behalf of the injured party, an error relating to the identity of the named plaintiff in the original action will not bar recommencement of the action pursuant to CPLR 205 (a) (see Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Chase Manhattan Bank v Wolowitz, 272 AD2d 428, 429; Krainski v Sullivan, 208 AD2d 904). Florio, J.P., O’Brien, Friedmann, Adams and Crane, JJ., concur.