Ballav v. Deepdale General Hospital

In an action to recover damages for medical malpractice, the defendants Samuel Movsas and Philip Gelber appeal from so much of an order of the Supreme Court, Queens County (Di Tucci, J.), dated January 7, 1991, as, after a hearing, permitted the plaintiff to commence a new action against the aforesaid defendants pursuant to CPLR 205 (a). Ordered that the order is affirmed insofar as appealed from, with costs. The original action was timely commenced for the purposes of CPLR 205 (a), despite the fact that when the summons was filed pursuant to CPLR 203 (b) (5), the plaintiff had not yet been appointed the administrator of the decedent’s estate (see, Carrick v Central Gen. Hosp., 51 NY2d 242; Moskowitz v Rosenberg, 71 AD2d 301). The appellants’ contention that they were improperly served with process in the original action is 521 without merit. The hearing court properly determined the credibility of the witnesses at the hearing to determine if service had been effected and the court’s finding was supported by a fair interpretation of the evidence (see, Feeney v Booth Mem. Med. Ctr., 109 AD2d 865). Rosenblatt, J. P., Miller, Santucci and Joy, JJ., concur.