Opinion
November 20, 1978
In a medical malpractice action to recover damages for personal injuries and for wrongful death, (1) defendant Spindler appeals from so much of an order of the Supreme Court, Queens County, dated February 16, 1978, as denied his motion for partial summary judgment and (2) plaintiff cross-appeals from so much of the same order as granted the defendant hospital's motion for partial summary judgment. Order modified, on the law, by deleting from the first decretal paragraph thereof the provision denying the motion for partial summary judgment as to defendant Spindler and substituting therefor a provision granting the said motion as to defendant Spindler, and by adding to the second decretal paragraph thereof, immediately after the words "Hospital", the following: "and defendant Spindler". As so modified, order affirmed, without costs or disbursements. Plaintiff concedes that the action for wrongful death was commenced more than two years after the decedent's death. It is therefore barred by the two-year Statute of Limitations on wrongful death actions (see EPTL 5-4.1). Plaintiff's claim that the statute was tolled pursuant to CPLR 207, because of defendant Spindler's continuous absence from the State, is incorrect. CPLR 207 does not apply where an alternate basis for service of process outside of the State exists (Yarusso v Arbotowicz, 41 N.Y.2d 516). Since the wrongful death claim arose out of tortious acts committed within the State, defendant Spindler was at all times subject to long-arm jurisdiction and the tolling provision of CPLR 207 does not apply (see CPLR 302, subd [a], par 2; Burwell v Whitmoyer, 56 A.D.2d 950; Goodemote v McClain, 40 A.D.2d 22). Accordingly, both defendants were entitled to partial summary judgment with respect to the wrongful death claims. Titone, J.P., Shapiro, Cohalan and Margett, JJ., concur.