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
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
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.
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
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