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ESTATE OF DIGIACOMO v. LENTZ

United States District Court, S.D. New York


January 14, 2004.

THE ESTATE OF GUIDO M. DIGIACOMO, Plaintiff, -against- MARTIN LENTZ and H. JOSEPH SAUBLE, Defendants

The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge

MEMORANDUM OPINION

The Estate of Guido M. DiGiacomo brings this diversity action to recover for damages sustained when Guido M. DiGiacomo, an 80-year-old resident of Connecticut, was struck by a vehicle driven by defendant Martin Lentz and owned by defendant H. Joseph Sauble, both residents of Pennsylvania. The accident occurred in New York City on September 7, 2000, and decedent died of his injuries later the same day. This action was commenced on Page 2 September 3, 2003, seeking damages for wrongful death and for personal injury ("survival claim") to the decedent. Defendant has moved to dismiss the complaint. Counsel for both sides cite New York law on capacity to sue and the applicable statute of limitations.

  The claim for wrongful death was dismissed with prejudice at oral argument on January 6, 2004, on the ground that plaintiff did not bring the action within New York's two-year statute of limitations. See New York Estates, Powers and Trusts Law ("N.Y. E.P.T.L.") § 5-4.1.

  Both the wrongful death claim and the survival claim are also subject to dismissal because there is no-proper plaintiff in this action. Under New York law, an estate without a personal representative is not an entity that can bring a wrongful death claim or a survival claim. See N.Y. E.P.T.L. § 5-4.1; id. § 11-3.2(b); see also Lichtenstein v. State, 93 N.Y.2d 911, 913 (1999). No entity that has the capacity to sue is named as a plaintiff in this action. Accordingly, the survival claim is dismissed without prejudice. Page 3

  Federal courts do not have the power to issue advisory opinions. Accordingly, I do not reach the question of whether a proper plaintiff may refile this action pursuant to New York Civil Practice Law and Rules § 205.

  SO ORDERED. Page 1

20040114

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