Opinion
9912-07.
Decided June 23, 2010.
DELL LITTLE, LLP, Attys. For Plaintiffs, Uniondale, NY.
BOWER LAWRENCE, P.C., Attys. For Defendant, New York, NY.
ORDERED that this motion (# 003) by the defendant for an order granting it leave to serve and file an amended answer and for dismissal of the complaint, is considered under CPLR 3025 and 3211 and is denied.
In April of 2007, the plaintiff commenced this action in his capacity as executor of the Estate of his deceased wife and in his individual capacity to recover damages for the personal injuries the plaintiff's decedent allegedly sustained in April of 2004 in a fall on premises owned by the defendant. In his complaint, the plaintiff alleged that in March of 2007, he had been duly appointed executor of the Estate of his deceased wife.
By the instant motion, the defendant seeks leave to amend its answer so as to include the affirmative defense of lack of capacity. The defendant also seeks dismissal of the complaint upon those grounds. Underlying these demands for relief are claims that, sometime after the commencement of this action, the plaintiff became incapacitated due to his affliction with Alzheimer's disease. As evidence of such disability, the defendant relies upon a power of attorney executed by the plaintiff in August of 2009 in favor of his daughter, Kristen Parker. Pursuant to that power of attorney, Kristen Parker is authorized to take up the prosecution of this action on behalf of the plaintiff, James V. Sayers. The defendant claims that these circumstances warrant a dismissal of the plaintiff's complaint due to the plaintiff's lack of capacity to sue. For the reasons set forth below, the motion is denied.
It is well established that capacity is a threshold question involving the power of a litigant to present a grievance for judicial review ( see Carpen v Nussbaum , 36 AD3d 176, 825 NYS2d 55 [2d Dept 2006]). Capacity may depend on a litigant's status or on authority to sue ( see Silver v Pataki , 96 NY2d 532, 730 NYS2d 482). A litigant's lack of capacity to sue is an affirmative defense and may provide a basis for dismissal of an action pursuant to CPLR 3211 (a) (4). Although this defense is waived if it not asserted in an answer or pre-answer motion to dismiss (see CPLR 3211 (e), it may be asserted in an amended answer served with leave of court so long as the amendment does not cause surprise or prejudice attributable directly to the delay ( see Complete Management, Inc v Rubenstein , ___ AD3d ___, 2010 WL 2200929 [2d Dept 2010]).
A litigant's lack of capacity to sue differs remarkably from a litigant's inability to pursue or defend a cause of action directly and without representation by a fiduciary of the type contemplated by CPLR 1201. In cases governed by CPLR 1201, the legally disabled litigant does not lack the capacity to sue or to be sued; rather, he or she is considered a ward of the court whose appearance in the action must be made by a CPLR 1201 representative ( see CPLR 321; 1201; 1203; see also NY Jur. Infants § 577).
The failure to appear by a CPLR 1201 representative is not jurisdictional in nature and may be cured nunc pro tunc, anytime prior to judgment (see CPLR 1202; Havens v Flushing med. Ctr. , 220 AD2d 387, 632 NYS2d 467 [2d Dept 1995]). When the disability arises subsequent to appearance of the litigant, CPLR 1202 provides for the appointment of a 1201 representative upon the court's own motion or upon motion of any party or any of the persons listed in CPLR 1202(a) ( see Brewster v. John Hancock Mut. Life Ins. Co. , 280 AD3d 300, 720 NYS2d 462 [1st Dept 2001]).
It is apparent from the record adduced on the instant motion that when this action was commenced in April of 2007, the plaintiff did not lack the capacity to sue either in his capacity as executor of the Estate of his deceased wife nor in his individual capacity. Although it appears that the plaintiff may have subsequently become incapacitated by reason of his affliction with a mental disease, these circumstances did not strip the plaintiff of his capacity to sue. Instead, the plaintiff's mental incapacity, if it does indeed exist, merely renders the plaintiff "incapable of adequately prosecuting or defending his rights" and warrants the appointment of and/or an appearance by a CPLR 1201 representative or other suitable fiduciary with authority to act on behalf of the plaintiff in this action.
Under these circumstances, the court finds that the proposed amended answer attached to the moving papers by which the defendant asserts the affirmative defense of lack of capacity to sue, is palpably improper and without of merit ( see CPLR 3025[b]; Schofield v DeGroodt , 54 AD2d 1017, 864 NYS2d 174 [2d Dept 2008]; Pelligrini v Richmond County Ambulance Serv., Inc. , 48 AD3d 436 , 851 NYS2d 268 [2d Dept 2008]; Lucido v Mancuso , 49 AD3d 200, 851 NYS2d 238 [2d Dept 2008]). Accordingly, the plaintiff's demand for leave to serve the proposed amended answer containing the affirmative defense of lack of capacity and its demand for a dismissal of the complaint based on that defense is denied.
The court nevertheless stays this action due to the apparent incapacity of the plaintiff. While his daughter may be entitled to be substituted as a representative plaintiff in this action due to her appointment as the plaintiff's attorney-in-fact, her authority would extend only to the plaintiff's derivative claims which have been asserted by the plaintiff in his individual capacity. Clearly, the claims of the plaintiff which have been asserted in his capacity as executor of the Estate of his deceased wife, may not be similarly prosecuted. Instead, these claims must be prosecuted by a duly appointed successor, personal representative of the Estate of Anne M. Sayers. Accordingly, the court hereby stays all proceedings in this action until September 14, 2010, the date on which the next compliance conference is scheduled so as to afford the plaintiff, his attorney-in-fact or the defendant time to move for the appropriate substitution of persons in the place and stead of the disabled plaintiff.