Opinion
Index No. 806061/2021E
01-04-2022
ISATOU DARBOE as Administrator of the Estate of BAKARY M. DARBOE, Plaintiff(s), v. ST. ANN'S ABH OWNER LLC and WAVECREST RUBEN FRANCO MANAGEMENT GROUP LLC, Defendant(s).
Unpublished Opinion
Present: HON ALISON TUITT, Justice
HON. ALISON Y. TUITT, J.S.C
The following papers numbered 1, Read on this Defendant's Motion to Dismiss Action pursuant to CPLR § 3211(a)(2). CPLR § 3211(a)(5). CPLR § 321(a) (3):
On Calendar of 9/3/2021
Notice of Motion - Exhibits and Affirmation 1.
Affirmation in Opposition - Affirmation, Affidavit, and Exhibits 2.
Reply - Affirmation, Affidavit, and Exhibits 3.
Upon me foregoing papers, the instant motion pursuant to CPLR § 3211 (a)(2), CPLR § 3211 (a)(5), CPLR § 3211 (a)(3) to dismiss the action is granted in part and denied in part in accordance with this Order, This is a personal injury and wrongful death action arising out of ah incident which occurred on February 2, 2017 at the premises located at 601 East 156th Street, Bronx, New York. Plaintiff alleges Defendants were negligent in the care, control and management of the premises which caused Plaintiff decedent, Bakary M. Darboe to sustain serious injury resulting in his death when he was attacked, assaulted and battered at aforesaid location. Plaintiff commenced the action by the filing of a summons and complaint on May 3, 2021. In lieu of an Answer, Defendants filed the herein motion to dismiss on June 25, 2021.
Now, upon Notice of Motion, Defendants move for an order dismissing the within action pursuant to CPLR §:3211(a)(2), CPLR § 3211(a)(5),CPLR.§ 3211(a)(3). Plaintiff has submitted opposition,
Defendants argue that this matter was previously commenced under index number 21476/2020Eand subsequently dismissed by Hon. Ruben Franco in his April 29, 2021 decision warranting dismissal under CPLR 3211(a)(2). Defendants state that in his decision, Hon. Franco held that Plaintiff lacked the capacity to sue as Plaintiff was not appointed as the Administrator of the estate of Bakary M. Darboe. The Court also held that Plaintiff commenced the action after the expiration of the statute of limitations for wrongful death claims and could not be availed to the benefit of CPLR § 205(a). Defendant further argue that: the complaint is virtually identical to 'that "of the prior action and. as such dismissal is warranted, Plaintiff argues that this matter should not be dismissed as it was brought under a personal injury cause of action. Plaintiff referred to Hon. Franco's decision arguing that despite the Court dismissing the wrongful death cause of action, Plaintiff was afforded the benefit of CPLR § 205(a) under the personal injury cause of action allowing Plaintiff to refile under said claim. Plaintiff argues that the new claim, was refiled and served on Defendants within the six (6) month time period provided in CPLR § 205(a) and is therefore timely. Plaintiff states that there exist causes of action for personal injury/negligence which are delineated in paragraphs '”52, 53, 54, 55, 56, 57, 59, 60, 61, 62, and 63" of the complaint. Plaintiff states given the above, the motion should be denied.
CPLR § 3211(a)(2) requires a court to dismiss a cause of action where "the court has not jurisdiction of the subject matter Of the cause of action."
"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired." Benn v. Berrn, 82 AP.3d 548, 548, 918 N.Y.S.2d 465 (1st Dept. 2011) (quoting Island ADC, Inc. v. Baldassano Architectural Group. PC, 49 A.D.3d 815, 816, 854 N.Y.S.2d 230 [2nd Dept. 2008]). "The burden then shifts to the plaintiff to raise a question of fact as to whether the: statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced Within the period propounded by the defendant." See MTGLQ Investor, LP v. Wozencraft 172 A.D.3d 644, 102 N.Y.S. 3d 25 (1st Dept. 2019); Epiphany Community Nursery School v. Levey, 171 A.D.3d 1, 94 N.Y.S. 3d1 (1st Dept. 2019);
CPLR 321.1 (a) (3) provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that... the party asserting the cause of action has not legal capacity to sue..,."
EPTL § 11-3.2 (b) provides, in pertinent part: No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent...
In the Prior Dismissal Decision dated April 29,2021 by Hon, Ruben Franco, the Court concluded that the prior action under wrongful death was dismissed for several reasons. Specifically, Plaintiff lacked the capacity to commence the action as Letters of Administration were not issued when the matter was commenced on January 29, 2020. Hon. Franco also deemed dismissal warranted as the statute of limitations for the wrongful death claim had expired and could not be extended though the application of CPLR § 205(a). However, the Court determined that a claim under personal injury/negligence was viable and allowed Plaintiff the opportunity provided under CPLR § 205(a) to file the action anew. As held in Hon Franco's decision and to which both Defendant and Plaintiff have confirmed, the wrongful death cause of action is dismissed. This Court notes that Plaintiff has complied with Hon. Franco's decision in that the claim for personal injury/negligence was filed pursuant to CPLR § 205(a) within the six (6) month period and served on Defendants* and that Plaintiff was appointed as Administrator for the herein estate. As such, Defendant's motion is granted to the extent that all claims for the wrongful death claim are dismissed and Plaintiff may continue under the personal injury/negligence cause of action.
Accordingly,
Defendant's motion (sequence 1") is granted in part and denied in part. All Claims under wrongful death cause of action are dismissed and those pertaining to personal injury/negligence cause of action may continue.
IT IS HEREBY ORDERED, that Defendant shall serve the herein decision with Notice of Entry on Plaintiff by first-class mail within ten (10) days from the date of this Order.
ORDERED, that Defendant is directed to file its Answer within thirty days of the date of entry
This constitutes the decision and Order of this Court.