Opinion
Index No. 531304/2022
06-25-2023
TERRI-ANN LEVERETT, as Proposed Administrator of the Estate of ENA O. PICKETT, Deceased, Plaintiff, v. FAMILY CARE CERTIFIED SERVICES a/k/a FAMILY CARE CERTIFIED SERVICES NYC a/k/a FAMILY CARE CERTIFIED SERVICES OF BROOKLYN AND QUEENS, Defendant.
Unpublished Opinion
Hon. Genine D. Edwards, Justice
At an I.A.S. Trial Term, Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York, on the 25th day of June 2023
The following e-filed papers read herein: NYSCEF Doc. No.
Notice of Motion and Affidavits (Affirmations) Annexed and Exhibits ............................3-9; 24-31
Answering Affidavit (Affirmation) and Exhibits ............................14-22; 37-42
Reply Affidavit (Affirmation) and Exhibits ............................32; 43
The Court reviewed the Gillis v. Bushmck Center decision. Additional arguments were not considered. See 22 NYCRR 202.8-c ("Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted, except that counsel may inform the court by letter of the citation of any post-submission court decision that is relevant to die pending issues, but there shall be no additional argument. Materials submitted in violation hereof will not be read or considered. Opposing counsel who receives a copy of materials submitted in violation of this Rule shall not respond in kind.").
Stipulation of Adjournment ............................23
Letter............................11
Plaintiff commenced this action to recover damages for wrongful death and personal injuries sustained by decedent in accordance with CPLR 205(a) after the dismissal of an earlier related action. The earlier action was dismissed for failure to substitute, pursuant to CPLR 1021. Thereafter, plaintiff filed an amended complaint.
[n lieu of filing an answer, defendant moved, in separate motions, to dismiss the complaint and the amended complaint with prejudice, pursuant to CPLR 3211(a)(3), CPLR 3211(a)(5), and CPLR 3211(a)(8). Defendant contended that plaintiff lacked the capacity to sue thus the complaint was a legal nullity; the prior dismissal was not pursuant to CPLR 205, and therefore the plaintiff did not have an additional six months to re-file; even if plaintiff had an additional six months, she still failed to obtain the proper appointment due to her year-long delay in filing the petition; the case is time-barred; and the Court lacked personal jurisdiction over the defendant in this action. Plaintiff opposed both motions, arguing that the action is not time-barred because, pursuant to the savings provision of CPLR 205(a), the instant action was timely commenced within six months of the prior action's dismissal and adhered to the statutory requirements in that the prior action was timely filed, not voluntarily dismissed, and jurisdiction over defendant was obtained in the prior action. Moreover, plaintiff indicated that the prior action was dismissed without prejudice and during oral argument the Court stated it would not be dismissed for lack of prosecution.
The complaint in the first action was filed on December 19, 2013, and dismissed on April 27, 2022, after plaintiff Alroy Moseley, as Temporary Administrator of the Estate of Ena O. Pickett, Deceased, failed to properly effectuate substitution of a proper representative, for the estate of Ena O. Pickett. Of note, a July 17,2019 court order directed plaintiff to file for a substitute administrator in Surrogate's Court within sixty days because Alroy Moseley had dementia. A few months later, the action was stayed on December 12, 2019, pending the appointment of an administrator
The case was also marked off rhe calendar on April 14, 2017, and restored on May 21,2018.
Alroy Moseley passed away on February 9, 2021. Affirmation in Opposition, ¶ 4.
On February 26, 2021, defendant moved to dismiss the action for failure to timely substitute a proper representative for plaintiff/decedent, pursuant to CPLR 1021. In March 2022, Terri-Ann Leverett (Alroy Moseley's granddaughter) petitioned Surrogate's Court to become the substitute administrator. Defendant's motion was heard on the record on April 13,2022. The Court rendered a decision on April 27, 2022, finding that there were grounds for dismissal of the action pursuant to CPLR 1021.
In reaching its determination that a dismissal of this case is warranted, the Court has taken into account the difficulties plaintiffs counsel may have encountered, but nevertheless did afford counsel for the plaintiff a considerable amount of time within which to file a petition for a substitute administrator. However, as the petition was not filed until March 2022, the Court does not find such filing to have been done within a reasonable and acceptable time period. Additionally, the Court considered that this case has a protracted history with discovery still incomplete more than ten years after the commencement of this action, which further supports the determination to dismiss this action.
Accordingly, plaintiffs action is dismissed without prejudice. April 27, 2022, Court Order.
This action was filed on behalf of plaintiff Terri-Ann Leverett, as the "Proposed Administrator" of the Estate of Ena O. Pickett on October 27, 2022. Terri-Ann Leverett was issued temporary letters of administration de bonis non on December 23, 2022.
CPLR 3211(a)(3)''A personal representative who . . . 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 or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death." Shelley v. 5. Shore Healthcare, 123 A.D.3d 797, 999 N.Y.S.2d 103 (2d Dept 2014). See also Ambroise v United Parcel Serv. of Am., 143 A.D.3d 929, 40 N.Y.S.3d 444 (2d Dept 2016); Long Island Care Center, Inc. v. Goodman, 137 A.D.3d 874, 26 N.Y.S.3d 595 (2d Dept. 2016); Jordan v. Jordan, 120 A.D.3d 632, 990 N.Y.S.2d 874 (2d Dept. 2014). Plaintiff did not obtain letters of administration prior to commencing this action. Such a defect upon commencement cannot be cured by obtaining letters or serving an amended complaint.
CPLR 3211(a)(5)In pertinent part, CPLR 205 states that "[i]f an action is timely commenced and is terminated in any other manner than by ... a dismissal of the complaint for neglect to prosecute the action . . .- the plaintiff, . . . may commence a new action . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such sixmonth period." CPLR 205. "Where a dismissal is one for neglect to prosecute the action ... the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation." CPLR 205. "[T]he 'neglect to prosecute' exception in CPLR 205 (a) applies not only where the dismissal of the prior action is for '[w]ant of prosecution' pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal." Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects &Landscape Architects, P.C., 5 N.Y.3d 514, 806 N.Y.S.2d 453 (2005). "Where the record makes clear the basis for the prior dismissal, the question of whether it was a dismissal for neglect to prosecute is a question of law." Deutsche Bank Natl. Tr. Co. v. Baquero, 192 A.D.3d 660, 143 N.Y.S.3d 400 (2d Dept 2021).
Here, the order included findings of specific conduct demonstrating a general pattern of delay in proceedings. The prior order outlined that the Court provided plaintiff a "considerable amount of time" to file a petition for a substitute administrator and that such was not done within a "reasonable and acceptable period of time." Moreover, the Court noted the prior action's protracted history with discovery and that discovery still was not completed more than ten years following the commencement of the prior action. "Whether the prior action was dismissed with prejudice or not has no bearing on whether it was dismissed for neglect to prosecute." Weisman, Celler, Spett &Modlin v. Fischbach LLC, 111 A.D.3d 566, 975 N.Y.S.2d 404 (1 Dept. 2013).
CPLR 3211(a)(8)On October 27, 2022, plaintiff filed and served a copy of the summons and verified complaint upon the defendant's counsel via Federal Express and upon defendant via certified mail, return receipt. Plaintiff also attempted to effectuate personal service of the summons and complaint upon defendant on October 28, 2022, but was unsuccessful. On January 23, 2023, plaintiff filed an amended summons and complaint and served it via e-file and mail upon defendant's counsel.
"[A] defendant's attorney is not automatically cloaked with . . . authority to accept service of process." Broman v. Stern, 172 A.D.2d 475, 567 N.Y.S.2d 829 (2d Dept. 1991). See also Deutsche Bank Natl. Tr. Co. v Campbell, 172 A.D.3d 1310, 101 N.Y.S.3d 414 (2d Dept 2019). "Moreover, 'absent proof that a defendant. . . designated his or her attorney as an agent for the acceptance of process, an attorney lacks the authority to accept service on the defendant's behalf.'" Redbridge Bedford. LLC v. 159 N 3rd St. Realty Holding Corp., 175 A.D.3d 1569, 109 N.Y.S.3d 352 (2d Dept 2019) quoting Born To Build, LLC v. Saleh, 139 A.D.3d 654, 31 N.Y.S.3d 545 (2d Dept 2016). Here, there was no showing that defendant authorized its counsel to accept service of process on its behalf, and defendant's counsel rejected the attempted service of process.
Accordingly, the motion is granted. The complaint is dismissed.