Hillen v. Di Paolo , 100 A.D.2d 893 ( 1984 )

In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered May 4, 1983, which, upon “plaintiff’s” motion, dismissed the complaint with leave to the plaintiff’s administrator to commence a new action within six months pursuant to CPLR 205 (subd [a]). I Order affirmed, with costs. 11 Notwithstanding the fact that the action was improperly brought in the name of a deceased plaintiff, it was still a timely commenced action for purposes of CPLR 205 (subd [a]) and therefore, since it was not voluntarily discontinued, dismissed for neglect to prosecute, or terminated by a judgment on the merits, plaintiff’s administrator may commence a new action within six months (George v Mount Sinai Hosp., 47 NY2d 170; see Mingone v State of New York, 100 AD2d 897; cf. Markoff v South Nassau Community Hosp., 61 NY2d 283). Under the circumstances, the fact that it was the administrator, rather than defendants, who moved to dismiss the clearly improper action in order to expedite the commencement of the new action did not render the termination a voluntary discontinuance. Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.