Ratka v. St. Francis Hospital

In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering, defendants White and Gordon appeal from an order of the Supreme Court, Dutchess County, dated November 26, 1975, which (1) granted plaintiff’s motion to strike the second complete and affirmative defense contained in the answer of said defendants and (2) denied their cross motion to dismiss plaintiffs cause of action for wrongful death. Order reversed, on the law, motion denied, and cross motion granted, with $50 costs and disbursements. The two-year Statute of Limitations for a wrongful death action (EPTL 5-4.1) was not tolled pursuant to CPLR 208 because of the infancy of a surviving child of the decedent, which child was appointed administrator when he reached majority, where there existed, at the time of the decedent’s death, next of kin who were under no disability to receive letters of administration. Accordingly, the cause of action for wrongful death was time-barred at the expiration of two years from the date of decedent’s death (see Mossip v Clement & Co., 256 App Div 469 , affd 283 NY 554 ; Pulsifer v Olcott, 63 Misc 2d 524 , affd 41 AD2d 781 ). Latham, Acting P. J., Margett, Rabin, Titone and Hawkins, JJ., concur.