Jamaica Hospital Medical Center

Appellate Division of the Supreme Court of New York, Second Department · Torts

TortsMedical malpracticeStatute of limitationsCPLR 205(a)medical malpracticeCPLR 3211(a)(5)statute of limitationsCPLR 205(a)

Facts

The plaintiff first commenced a medical malpractice action against the defendants on December 3, 2010, alleging serious and permanent personal injuries on June 7, 2008. That first action was dismissed by order entered August 17, 2011, because the plaintiff failed to provide a complaint after a demand pursuant to CPLR 3012(b). The plaintiff then commenced a new action against the same defendants on February 23, 2012. The defendants moved separately to dismiss the new complaint as barred by the statute of limitations.

Issue

Whether the plaintiff's February 23, 2012 medical malpractice action was time-barred, and specifically whether CPLR 205(a) permitted recommencement within six months after the earlier action was terminated. Also at issue was whether the defendants satisfied their burden under CPLR 3211(a)(5) and whether the plaintiff raised a triable issue of fact that the limitations period was tolled or otherwise inapplicable.

Rule

On a motion to dismiss under CPLR 3211(a)(5) on statute of limitations grounds, the defendant must establish prima facie that the time to commence the action has expired; the burden then shifts to the plaintiff to raise an issue of fact that the statute of limitations was tolled or otherwise inapplicable. In a medical malpractice action, the limitations period is 2 1/2 years. CPLR 205(a) allows a new action to be brought within six months after dismissal of an earlier action when the dismissal was on certain non-merits grounds, and that six-month period runs from the date the earlier action terminated.

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In Brooklyn, Lena Ortiz alleges that a surgeon at Harbor Vale Clinic committed malpractice on January 10, 2019. She filed a new malpractice action on August 1, 2022, and Harbor Vale Clinic moved to dismiss under CPLR 3211(a)(5), submitting the pleading showing the treatment date and the filing date; Lena submitted no facts showing tolling or any other basis for timeliness.

How should the court rule on the motion?

Explanation. On a CPLR 3211(a)(5) motion, the moving defendant must first establish prima facie that the time to sue has expired. Once that showing is made, the burden shifts to the plaintiff to raise an issue of fact that the limitations period was tolled or otherwise inapplicable. In a medical malpractice action, the period is 2 1/2 years, so the motion should be granted here. (Derived from Jamaica Hospital Medical Center (n.d.).)