Opinion
Index No. 150058/2024 Motion Seq. No. 001
10-10-2024
JACQUELINE POLLEN, as Proposed Administratrix of the Estate of SONIA MARGULES, Deceased, Plaintiff, v. DEWITT REHABILITATION AND NURSING CENTER, doing business as UPPER EAST SIDE REHABILITATION AND NURSING CENTER, Defendant.
Unpublished Opinion
MOTION DATE 07/19/2024
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,21,22,23 were read on this motion to/for DISMISSAL.
In this action to recover damages for medical malpractice and wrongful death, the defendant moves pursuant to CPLR 3211 (a)(3) and (7) to dismiss the complaint for the plaintiff's lack of capacity to prosecute the action and for failure to state a cause of action, pursuant to CPLR 3211 (a)(5) to dismiss the wrongful death cause of action as time-barred, and pursuant to CPLR 3024(a) to strike allegedly scandalous and prejudicial material from the complaint. The plaintiff opposes the motion, and cross-moves pursuant to CPLR 1021 and 3025(b) to substitute Marc Adler, as executor of the estate of Sonia Margules, as the plaintiff in place and instead of Jaqueline Pollen, as the proposed administratrix of Margules's estate, which was how Pollen characterized herself in the summons and complaint, and to amend the complaint accordingly. The defendant opposes the cross motion. The defendant's motion is granted on the ground that the plaintiff lacked capacity to commence the action, and the complaint is dismissed, albeit without prejudice to commencement of a new action by Adler in his representative capacity in accordance with CPLR 205(a). The defendant's motion is otherwise denied as academic. The plaintiff's cross motion is denied.
In the summons and complaint, Pollen characterized herself as the "proposed administratrix" of the decedent's estate.
"A personal representative who has received letters of administration of a decedent's estate [or letters testamentary] 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 South Shore Healthcare, 123 A.D.3d 797, 797 [2d Dept 2014]; see Gulledge v Jefferson County, 172 A.D.3d 1666, 1667 [3d Dept 2019]; Jordan v Metropolitan Jewish Hospice, 122 A.D.3d 682, 683 [2d Dept 2014]; Mingone v State of New York, 100 A.D.2d 897, 899 [2d Dept 1984]; EPTL 1-2.13, 5-4.1 [1]; 11-3.2 [b]). Consequently, a "proposed administrator" lacks capacity to prosecute either a personal injury "survival" action or a wrongful death action on behalf of the estate of a decedent (see Rodriguez v River Vai. Care Ctr., Inc., 175 A.D.3d 432, 433 [1st Dept 2019]; Richards v Lourdes Hosp., 58 A.D.3d 927, 927-928 [3d Dept 2009]; Mendez v Kyung Yoo, 23 A.D.3d 354, 355 [2d Dept 2005]; Duran v Isabella Geriatric Ctr., Inc., 2023 NY Slip Op 30500[U], *9, 2023 NY Mise LEXIS 669, *12-13 [Sup Ct, N.Y. County, Feb. 15, 2023] [Kelley, J.]; Castro v Fraser, 2022 NY Slip Op 30903[U], *5, 2022 NY Mise LEXIS 1368, *7 [Sup Ct, N.Y. County, Mar. 15, 2022] [Kelley, J.]; Stroble v Townhouse Operating Co., 2019 NY Mise LEXIS 18865 [Sup Ct, Nassau County, Dec. 16, 2019]; Fleisher v Ballon Stoll Bader & Nadler, P.C., 2015 NY Slip Op 31855[U], *5, 2015 NY Mise LEXIS 3625, *6 [Sup Ct, N.Y. County, Oct. 5, 2015]).
Where a plaintiff lacks capacity to prosecute an action, and a defendant timely moves to dismiss the complaint on that ground, the complaint must be dismissed, and is not subject to an amendment to substitute a proper plaintiff, since the action was a nullity ab initio (see Darboe v. St. Ann's Abh Owner LLC, 2021 NY Mise LEXIS 37996, *11 [Sup Ct, Bronx County, Apr. 30, 2021 ] ["A plaintiff who is not the personal administrator when he or she commences the lawsuit cannot file an Amended Complaint after receiving the letters of administration and rely on the relation-back doctrine of CPLR 203 to take advantage of the timeliness of the original action, because that action is a nullity."]). Hence, the plaintiff's cross motion for leave to substitute Marc Adler, as executor of the estate of Sonia Margules, must be denied.
The dismissal, however, is without prejudice to the commencement of a new action against the defendant for the same relief, under a new index number, in accordance with CPLR 205(a), within six months of the termination of the claims against them. As relevant here, CPLR 205(a) provides that:
"[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences 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 six-month period."
A "disposition based solely upon the absence of a duly appointed administrator does not preclude reprosecution of the underlying claim through the mechanism of CPLR 205 (subd [a]) once a qualified administrator has been appointed" (Carrick v Central Gen. Hosp., 51 N.Y.2d 242, 252 [1980]; see Rodriguez v River Vai. Care Ctr., Inc., 175 A.D.3d at 433; Snodgrass v Professional Radiology, 50 A.D.3d 883, 884-885 [2d Dept 2008]; Mendez v Kyung Yoo, 23 A.D.3d at 355; Bernardez v City of New York, 100 A.D.2d 798, 799-800 [1st Dept 1984]).
In light of the court's determination, it declines to address any of the other grounds for dismissal urged by the defendant, and declines to address its contention that the complaint includes scandalous and prejudicial material that should be stricken.
Accordingly, it is, ORDERED that the defendant's motion is granted to the extent that the complaint is dismissed on the ground that the plaintiff lacked capacity to commence the action, without prejudice to the commencement of a new action, in accordance with CPLR 205(a), by the executor of the decedent's estate under a different index number against the defendant for the same relief, and the motion is otherwise denied; and it further, ORDERED that the plaintiff's cross motion is denied; and it is further, ORDERED that the Clerk of the court shall enter judgment accordingly.
This constitutes the Decision and Order of the court.