Opinion
# 2017-040-142 Claim No. 129782 Motion No. M-90758
11-30-2017
BRANDON PATTERSON v. ADULT RESIDENCE, Yorkville Community, 22 Main Street, Yorkville, NY, MOHAWK VALLEY PSYCHIATRIC CENTER, 1400 York Street, Utica, NY, DR. MICHAEL GRIBETZ, OTIS BRYANT, YORK STREET CLINIC, 1400 Noyes St., Utica, NY
Brandon Patterson, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., Assistant Attorney General
Synopsis
State's Motion to Dismiss on basis that Claimant lacks legal capacity to sue granted.
Case information
| UID: | 2017-040-142 |
| Claimant(s): | BRANDON PATTERSON |
| Claimant short name: | PATTERSON |
| Footnote (claimant name) : | |
| Defendant(s): | ADULT RESIDENCE, Yorkville Community, 22 Main Street, Yorkville, NY, MOHAWK VALLEY PSYCHIATRIC CENTER, 1400 York Street, Utica, NY, DR. MICHAEL GRIBETZ, OTIS BRYANT, YORK STREET CLINIC, 1400 Noyes St., Utica, NY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129782 |
| Motion number(s): | M-90758 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Brandon Patterson, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to the dismiss the Claim on the basis that the party asserting the cause of action lacks legal capacity to sue pursuant to CPLR 3211(a)(3) is granted and the remainder of the Motion is denied as moot.
This pro se Claim, which was filed in the office of the Clerk of the Court on June 5, 2017, alleges that Claimant's father, Michael Patterson, died on March 16, 2017 as a result of medical malpractice and negligence. It is alleged that decedent was living in an apartment, apparently after being moved there from a group home. It is further alleged that decedent was under the care of Michael Gribetz, M.D., who, it appears, may work at Mohawk Valley Psychiatric Center, and that decedent was coughing up blood and bleeding from his rectum for several days, had advised his social worker of his condition, and the social worker did nothing to assist decedent. It is further asserted that Dr. Gribetz prescribed harsh medications to decedent that are known to cause health issues.
Defendants move to dismiss the Claim, among other grounds, on the basis that Claimant lacks standing to sue because he is not the "duly appointed" representative of decedent. The Estate, Powers and Trust Law (hereinafter, "EPTL") provides that "[a] personal representative is a person who has received letters to administer the estate of a decedent" (EPTL §1-2.13). A "duly appointed" personal representative has the authority to maintain an action to recover damages for a wrongful act or neglect which allegedly caused the decedent's death (EPTL § 5-4.1). Claimant in this action has neither alleged nor established that he had received letters of administration when the action was commenced. Claimant did not oppose Defendants' Motion.
Therefore, the Court finds and concludes that Claimant has not established that he is a duly appointed personal representative of the decedent and thus cannot maintain this action (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], affg 252 AD2d 921 [3d Dept 1998]). Here, the Claim was not properly commenced and therefore it "must be dismissed" (Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008]; see Langer v State of New York, 65 AD3d 780 [3d Dept 2009]).
The Court notes that Claimant still has time to obtain letters of appointment and commence a timely action, within two years of the date of decedent's death (Court of Claims Act § 10[2]; EPTL § 5-4.1). Claimant may pursue his efforts to obtain proper documentation to obtain letters of appointment in Surrogate's Court.
In accordance with the foregoing, Defendants' Motion is granted and the Claim is dismissed.
November 30, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendants' Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support and Exhibit Attached 1 Filed Papers: Claim