Opinion
# 2017-053-574 Claim No. 127102 Motion No. M-90233 Cross-Motion No. CM-90542
12-01-2017
ANDREA FREEMAN, as Proposed Administrator of the Estate of SERENE FREEMAN v. THE STATE OF NEW YORK
LAW OFFICE OF JOSEPH M. LICHTENSTEIN, P.C. BY: Joseph Lichtenstein, Esq. T. McKinley Thornton, Esq. Howard Neuthaler, Esq., (of counsel) HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Carolyn M. Planas, Esq. Assistant Attorney General
Synopsis
Claimant's motion seeking an order to substitute the proposed administrator of the estate of the decedent with the temporary administrator and to amend the caption of the claim is denied and the defendant's cross-motion to dismiss the claim is granted. The proposed administrator did not receive letters of administration before commencing the actions and never received letters thereafter. Where a claim has been commenced by a claimant who has not been appointed administrator, the claimant lacks capacity to sue and this Court lacks jurisdiction over that claim. Claimant's argument to dismiss the claim without prejudice to re-file this action within six months pursuant to CPLR 205 (a) is also denied as that statute does not apply to a new action brought by a different claimant.
Case information
| UID: | 2017-053-574 |
| Claimant(s): | ANDREA FREEMAN, as Proposed Administrator of the Estate of SERENE FREEMAN |
| Claimant short name: | FREEMAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127102 |
| Motion number(s): | M-90233 |
| Cross-motion number(s): | CM-90542 |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LAW OFFICE OF JOSEPH M. LICHTENSTEIN, P.C. BY: Joseph Lichtenstein, Esq. T. McKinley Thornton, Esq. Howard Neuthaler, Esq., (of counsel) |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Carolyn M. Planas, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 1, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Andrea Freeman, as the proposed administrator of the Estate of Serene Freeman filed claim no. 127102 on November 25, 2015 for personal injuries, lack of informed consent and the wrongful death of Serene Freeman. Claimant brings motion no. M-90233 seeking an order substituting the temporary administrator of the Estate of Serene Freeman, Robert D. Beckford, in place of Andrea Freeman as the claimant in claim no. 127102 and to amend the caption of the claim accordingly. Defendant opposes claimant's motion and cross-moves to dismiss the claim. In that a resolution of defendant's cross-motion could obviate the need to address claimant's motion, the Court will address defendant's cross-motion first. PROCEDURAL HISTORY
According to the claim (Defendant's Exhibit B), the deceased Serene Freeman received negligent medical care from the State of New York Downstate Medical Center (Downstate) from May 8, 2014 until her death on May 21, 2014. The deceased left surviving an infant child as the sole distributee of her estate. On May 30, 2014, the decedent's sister, Andrea Freeman, as the proposed administrator of the estate of the deceased Serene Freeman, served a notice of intention to file a claim upon the Office of the Attorney General (Defendant's Exhibit A). On August 6, 2015, Kings County Family Court appointed Andrea Freeman as guardian of the decedent's infant child (Family Court order attached to the claim).
The notice of intention to file a claim, the claim and the affirmations of both counsel refer to the date of death of the decedent as being May 21, 2014. However, both the March 24, 2017 letters of temporary administration issued by Kings County Surrogate's Court and the corrected letters of temporary administration issued by the Kings County Surrogate's Court list the date of death as May 17, 2014.
Unlike a claim, a notice of intention to file a claim may be served by an interested person (Matter of Dolce v State of New York, 152 AD3d 515 [2d Dept 2017]).
On November 25, 2015, Andrea Freeman, as the proposed administrator of the estate of Serene Freeman filed claim no. 127102 with the Court of Claims. Before the claim was served, however, Kings County Family Court issued a final order dated November 30, 2015 awarding Robert D. Beckford custody of the infant, his natural child (Claimant's Exhibit D). According to the affirmation of Claimant's counsel, T. McKinley Thornton, Esq. dated April 13, 2017, this final order of custody made Robert D. Beckford eligible to become guardian of the infant's property and administrator of the estate of Serene Freeman. The claim naming Andrea Freeman as the proposed administrator was served upon the Attorney General's Office on December 16, 2015. An answer was filed on January 21, 2016.
On March 24, 2017, Kings County Surrogate's Court issued temporary letters of administration to Robert D. Beckford as fiduciary. As first issued, the temporary letters of administration were limited to commencing and prosecuting a cause of action in Supreme Court, Kings County. According to the affirmation of Howard Neuthaler, Esq. dated April 11, 2017, Mr. Neuthaler promptly requested that Surrogate's Court issue another temporary letter of administration authorizing Robert D. Beckford to commence and prosecute a cause of action on behalf of the estate of Serene Freeman. Both the original letters and the amended letters were dated March 24, 2017 and were valid for a period of six months from the date of the order. It is now more than six months since the temporary letters of administration have been issued to Robert D. Beckford and no action has been commenced against the State in the Court of Claims by Mr. Beckford as temporary administrator of the estate of Serene Freeman. It is not known if Surrogate's Court has issued another temporary letter or if final letters of administration have been issued to Robert D. Beckford. DEFENDANT'S MOTION TO DISMISS (CM-90542)
Court of Claims Act § 10 (2) provides that a claim by an administrator of a decedent who left surviving a next of kin, for damages for a wrongful act which caused the decedent's death, shall be filed and served upon the Attorney General within ninety (90) days after the appointment of the administrator, unless the claimant shall serve a notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two (2) years after the death of the decedent. Such a claim must be filed and served within two years after the death of the decedent. Court of Claims Act § 10 (3) provides that a claim for damages allegedly caused by the negligence of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the claim. Here, the claim for personal injuries accrued on May 21, 2014, the alleged date of decedent's death. However, because a notice of intention to file a claim was served within ninety (90) days of accrual of this cause of action, a claim for personal injuries had to be filed and served within two years of decedent's death, or by May 21, 2016, at the latest.
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Here, Court of Claims Act § 10 (2) specifically provides that a wrongful death action must be commenced by the administrator of the deceased's estate. Similarly, a claim under Court of Claims Act § 10 (3) for personal injuries for the conscious pain and suffering of the deceased is a claim for damages which accrues to the benefit of the estate (Stolarski v Family Servs. of Westchester, Inc., 110 AD3d 980 [2d Dept 2013]). It thus follows that a claim for personal injuries under the Court of Claims Act, like a claim for wrongful death, contemplates the formal appointment of an administrator before an action may be commenced against the State (Lichtenstein v State of New York, 93 NY2d 911 [1999]; see also EPTL 11-3.2 and EPTL 1-2.13]). In fact, "a personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent" (Shelley v South Shore Healthcare, 123 AD3d 797 [2d Dept 2014]).
Claim no. 127102 was commenced by Andrea Freeman as the proposed administrator of the Estate of Serene Freeman. Claimant, who had not received letters of administration before commencing this action and who has never received letters of administration, does not meet the requirements of the Court of Claims Act and thus did not properly commence this action. Where, as here, a claim has been commenced by a claimant who has not been appointed administrator of the estate of the deceased, the claim must be dismissed (Lichtenstein v State of New York, supra at 913; Thomas v State of New York, 57 AD3d 969 [2d Dept 2008]). A proposed administrator, like the claimant herein, lacks the capacity to sue in this Court and as a result, this Court lacks jurisdiction over the claim filed by a proposed administrator (Franco v State of New York, UID No. 2015-049-020 [Ct Cl, Weinstein, J., March 16, 2015]; Cotto v State of New York, UID No. 2009-038-555 [Ct Cl, DeBow, J., July 14, 2009]; Powell v State of New York, UID No. 2000-004-510 [Ct Cl, Hanifin, J., May 19, 2000]). Thus, defendant's cross-motion no. CM-90542 is granted and claim no. 127102 is dismissed. CLAIMANT'S MOTION NO. M-90233
Counsel for the claimant, Andrea Freeman as Proposed Administrator of the Estate of Serene Freeman, brings motion no. M-90233 seeking to substitute Robert D. Beckford as temporary administrator of the estate of Serene Freeman as claimant in the place of Andrea Freeman and to amend the caption of the claim accordingly. This Court's decision to dismiss the claim renders claimant's motion to substitute and amend the caption moot as there is no longer a claim to amend. Moreover, claimant cannot amend a jurisdictionally defective claim (Johnson v State of New York, UID No. 2012-010-017 [Ct Cl, Ruderman, J., June 26, 2012]). Thus, claimant's motion to substitute the claimant and to amend the caption is denied as moot.
In the alternative, claimant argues that if this Court dismisses claim no. 127102, that it make such dismissal without prejudice to claimant's right to re-file this action within six months pursuant to CPLR § 205 (a). The Court declines to do so. The present claim was commenced by Andrea Freeman who, as the proposed administrator, had no standing to do so. In fact, Andrea Freeman has never been appointed administrator of the estate of her sister Serene Freeman. Recommencement under CPLR § 205 (a) anticipates that the re-filed action will be brought by the same party. In fact, CPLR § 205 (a) is subtitled "New action by plaintiff." It does not refer to a new action brought by a different plaintiff or claimant as the case herein.
The factual background as discussed by the appellate division in Lichtenstein v State of New York, 252 AD2d 921 [3d Dept 1998], affd 93 NY2d 911 [1999]) is instructive. In Lichtenstein, a widow filed a claim for her deceased husband's personal injuries and wrongful death within three months of his death despite the fact that no letters of administration had been issued. Like the present claim, the widow denominated herself as the proposed administratrix. At some point after filing the claim as the proposed administratrix, the widow in Lichtenstein received letters of administration. At no time thereafter did the widow, in her capacity as administrator, ever file and serve a claim against the State of New York. The defendant therein moved to dismiss the initial claim arguing that the widow lacked the capacity to sue the State at that time and asserting that the claim was a nullity. The claimant therein requested CPLR § 205 (a) relief. In denying claimant's request for 205 (a) relief, the Third Department in Lichtenstein noted:
"The question of whether claimant's action qualifies for recommencement under CPLR 205 (a) turns on whether the November 1994 verified claim was timely commenced. As relevant here, the statutory prerequisites to a personal injury suit against the State are the filing and service of a claim by a decedent's personal representative within 90 days of the accrual of the claim (see Court of Claims Act § 10 [3]; see also, EPTL 11-3.2 [b]. The statutory prerequisites to a wrongful death suit are the filing and service of a claim by an executor or administrator within 90 days of the appointment of such executor or administrator (see, Court of Claims Act § 10 [2]). Because this is a suit against the State (citations omitted) these conditions must be strictly construed (citations omitted). Because claimant had no authority to file the verified claim against the State before being appointed decedent's administrator, and in fact never filed and served any claim after such appointment, the Court of Claims did not err in dismissing the claim as untimely and denying her the relief afforded under CPLR 205 (a) (citations omitted). Lichtenstein v State of New York, 252 AD2d at 922-923.
The Court of Appeals in affirming the decision in Lichtenstein, noted that Court of Claims Act §§ 10 (2) and 10 (3) contemplated that an executor or administrator be formally appointed before an action against the State is commenced and noted that the claimant, who started her action in the Court of Claims before receiving letters of administration, did not meet the requirements of the Court of Claims Act and, thus, did not properly commence the action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). The Court of Appeals concluded "that claimant's arguments with respect to the application of CPLR 205 (a) ... are without merit" (Id.).
The Court is now faced with an analogous situation to that presented to the Court of Appeals in Lichtenstein. Here, an action was commenced by Andrea Freeman as the proposed administrator of the estate of Serene Freeman, before she received letters of administration. Thus, the action commenced by Andrea Freeman was not properly commenced and has been dismissed. Unlike the situation in Lichtenstein, the claimant herein, Andrea Freeman, has never been issued letters of administration. Moreover, no action has been commenced to date by Robert D. Beckford, the administrator of the estate of the decedent and the statute of limitations for personal injuries and wrongful death causes of action have now expired. Mr. Beckford received temporary letters of administration on March 24, 2017. Assuming the validity of the notice of intention served within ninety (90) days of decedent's death, the statute of limitations on a claim for personal injuries and for the wrongful death of Serene Freeman expired on May 21, 2016, two years after her death. No claim has been properly commenced in the Court of Claims against the State within the statute of limitations for either a personal injuries or wrongful death action. Thus, no properly commenced action has been timely filed or served and claim no. 127102 may not be re-filed pursuant to CPLR § 205 (a) (Id.).
Claim no. 127102 filed by the proposed administrator Andrea Freeman on November 25, 2015 contained a third cause of action for lack of informed consent. This cause of action expired on August 19, 2014, ninety days after decedent's death and before claim no. 127102 was filed, as such a cause of action was not mentioned in the notice of intention and thus did not get the benefit of the two year extension to file and serve a claim under Court of Claims Act § 10 (3). --------
Based on the foregoing, defendant's cross-motion no. CM-90542 is granted and claim no. 127102 is dismissed. Claimant's motion no. M-90233 to substitute the claimant and amend the caption, as well as the request, in the alternative, that any dismissal of claim no. 127102 be made without prejudice to claimant's alleged right to re-file a claim within six months pursuant to CPLR § 205 (a) are all denied.
December 1, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion no. M-90233 and affirmation of T. McKinley Thornton, Esq. dated April 13, 2017, with annexed Exhibits and affirmation of Howard Neuthaler, Esq. dated April 11, 2017; 2. Notice of cross-motion no. CM-90542 and affirmation of Carolyn M. Planas, Esq. dated June 7, 2017, with annexed Exhibits A-D; and 3. Affirmation in opposition and reply of T. McKinley Thornton, Esq. dated August 7, 2017, with annexed Exhibits.