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LaBoy v. Children's Hospital of Buffalo

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 29, 1998
249 A.D.2d 944 (N.Y. App. Div. 1998)

Opinion

April 29, 1998

Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.

Present — Denman, P.J., Green, Wisner, Pigott, Jr., and Fallon, JJ.


Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed this wrongful death action on the ground that plaintiff did not have the capacity to sue until the Statute of Limitations had expired. Plaintiff, who commenced this action individually and on behalf of her infant son, failed to obtain letters of administration until almost four years after commencement of the action and six years after her son's death (see, George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 176-177; Ratka v. St. Francis Hosp., 44 N.Y.2d 604; Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029).

The court also properly denied plaintiff leave to amend the complaint to add a cause of action for conscious pain and suffering. Although plaintiff commenced the action within the applicable 2 1/2 year limitation period for medical malpractice actions set forth in CPLR 214-a, she did not have letters of administration at that time. Plaintiff's amended pleading, served more than 2 1/2 years after the expiration of the Statute of Limitations, cannot relate back to the wrongful death action because that action was properly dismissed (see, Goldberg v. Camp Mikan-Recro, supra, at 1029-1030; see also, Mogavero v. Stony Creek Dev. Corp., 53 A.D.2d 1021).


Summaries of

LaBoy v. Children's Hospital of Buffalo

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 29, 1998
249 A.D.2d 944 (N.Y. App. Div. 1998)
Case details for

LaBoy v. Children's Hospital of Buffalo

Case Details

Full title:GINA M. LaBOY, Individually and as Parent and Natural Guardian of ROCCO L…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 29, 1998

Citations

249 A.D.2d 944 (N.Y. App. Div. 1998)
672 N.Y.S.2d 183

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