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Plaintiff Files Medical Malpractice Case, New York Appellate Court Grants Summary Judgement for the Defendants


The plaintiffs in the case are Roseann Caracciolo individually and Roseann Caracciolo as the proposed administrator of the assets of her late husband, Pasquale. The defendants in the case are Ralph Peluso, M.D., Mladen Solar, M.D., The Staten Island University Hospital, the Brooklyn Family Medical Associates, Joseph McGinn, M.D., and Donald McCord, M.D.

The Case

Through the motion that was filed on the 7th of February, 2007, the defendants Donald McCord and Mladen Solar jointly move to discharge the grievance made by the plaintiff based on the fact that the plaintiff lacks the means to sue. By a cross motion that was filed on the 15th of February, 2007, defendants Brooklyn Family Medical Associates, Ralph Peluso, and the Staten Island University Hospital for dismissal of the case based on the same reasons. Defendant Joseph McGinn moves for the same release for the same reasons. According to a New York Injury Lawyer, the plaintiff is against the motions as well as the cross motions of the defendants/movants.

By the cross motion filed by the plaintiff on the 8th of March, 2007, the plaintiff moves to alternate the parties and to revise the caption.

Case Facts

The undisputed facts of the case are that on the 26th of December, 2004, Pasquale Caracciolo died. On the 13th of December, 2006, his spouse, Roseann initiated the action against the defendants through filing a complaint and summons with the Clerks office of Kings County. In the summons, she was named as the proposed administrator of the estate and herself and her husband as the individual plaintiffs. There are 3 causes of action in the complaint as well as 56 allegations.

The cause of action listed first is a medical malpractice suit filed against all of the defendants in regard to the medical treatment and care of the deceased. The 2nd cause of action avers the liability of the defendants in the untimely death of Pasquale Caracciolo. The 3rd cause of action avers the loss of services to the plaintiff as a result of her husband’s untimely death.

In January of the year 2007, the defendants responded to the complaint joined in issue with each other. On the 20th of February 2007, the plaintiff was appointed as the administrator of the assets of her late husband through the Surrogate’s Court of the State of New York. When the action was commenced by the plaintiff she had not been selected as the administrator of the estate.

Defendants Argument

According to a Brooklyn Personal Injury Lawyer, each of the defendants/movants motions for dismissal is supported by a copy of the complaint and summons, the answer of the complaint, and an affirmation of counsel. Defendants Donald McCord and Mladen Solar also state in opposition to the complaint stating it took place after the deadline set for this type of case.

Case Discussion and Verdict

The defendants wish to accelerate the judgment dismissing the case as the plaintiff lacked the power to sue at the time the complaint was commenced.

As for the argument that the complaint is untimely, in this case the plaintiff had two years from the time of death to file the wrongful death suit. Her complaint was submitted two weeks before the deadline.

In this case the Court finds in favor of the defendants and the case is dismissed. However, a Bronx Personal Injury Lawyer said the dismissal of the three causes of action is without prejudice to Roseann Caracciolo and gives her the right to recommence the action as the administrator of the estate.

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