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Carmenate v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 3, 2009

OSVALSO CARMENATE, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS, TUSCAN/LEHIGH DAIRIES, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about January 28, 2008, which, to the extent appealed from, granted the motion by defendants Tuscan/Lehigh Dairies and Robe to dismiss the complaint but without prejudice to commencement of a new action, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, J.P., Buckley, Catterson, McGuire, Acosta, JJ.

18222/05

This action, seeking damages for wrongful death and negligence, was timely brought by the decedent's brother, who had not then obtained the required letters of administration to prosecute the matter. Consequently, the motion court granted the motion by Tuscan/Lehigh and Robe to dismiss on the ground that the suit had not been instituted by an appointed administrator, but did so without prejudice to the commencement of a new action in accordance with CPLR 205(a). Although Tuscan/Lehigh and Robe acknowledge that CPLR 205(a) would permit the bringing of a new action had plaintiff filed for letters of administration prior to the expiration of the statutory period (see Carrick v Central Gen. Hosp., 51 NY2d 242 [1980]), they argue that his failure to apply for such letters until after the expiration of the statute of limitations is fatal to his right to institute another lawsuit.

However, as Carrick and its progeny make clear, the only factors necessary for invoking CPLR 205(a) are that there has been a prior timely commenced action, providing the defendants with notice of the claims against them asserted by or on behalf of the injured party, and that the dismissal was not on the merits but for reason of a defect such as the lack of a qualified administrator, all of which elements are present herein. No additional factors are mandated by Carrick or the authority derived therefrom (see e.g. Mendez v Kyung Yoo, 23 AD3d 354 [2005]; Vasquez v Wood, 18 AD3d 645 [2005]).

20090203

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