Anthony Brown, as the Administrator of the Estate of Sharline Orlinda Brown, and Anthony Brown individually, Plaintiffs,
Lutheran Medical Center, et. ano., Defendants.
Plaintiff's Attorney, Joseph Ciaccio, Esq., Law Office of Joseph M. Lichtenstein, P.C.
Defendant's Attorney, Ida A. Caputo, Esq., Vaslas, Lepowsky, Hauss & Danke, LLP
Defendant's Attorney, Martin B. Adams, Esq., Kopff, Nardelli, Dopf, LLP
Lawrence S. Knipel, J.
Upon the foregoing papers, plaintiffs move: (1) pursuant to CPLR 3211(b), striking affirmative defenses numbered "fifth, " "sixth, " seventh, " and "ninth" (asserting defenses on the respective grounds of statute of limitations, res judicata, collateral estoppel, and laches) of defendant Maimonides Medical Center (Maimonides), and affirmative defenses numbered "First, " "Second, " "Third, " "Twelfth, " and "Thirteenth" (asserting defenses on the grounds of statute of limitations, res judicata and collateral estoppel) of defendant Lutheran Medical Center (Lutheran); and (2) pursuant to CPLR 3406, 2004 and Uniform Trial Court Rule 22 NYCRR 202.56, extending plaintiffs' time to file a Notice of Medical Malpractice Action.
The instant motion practice arises out of two lawsuits alleging causes of action stemming from purported departures by defendants in the care and treatment of the decedent Sharline Orlinda Brown (Ms. Brown) that allegedly caused her death.
The first of said lawsuits was commenced on July 27, 2009, under index number 25427/09, by Anthony Brown (Brown), Ms. Brown's husband, when Ms. Brown was still alive. In the caption, Brown was designated "proposed guardian ad litem, "and, in addition, sued derivatively on his own behalf.
On December 5, 2009, Ms. Brown died. Letters of Administration were obtained on May 11, 2011.
In November of 2010, both defendants moved to dismiss said lawsuit pursuant to CPLR 3211(a)(3), for lack of capacity to sue based on the failure to have a court appointed guardian, and for failure to comply with discovery. By order dated April 15, 2011, this court granted defendants' motions and by short form order, ordered that plaintiff's complaint be dismissed with prejudice. Judgments were duly entered. By motion dated June 29, 2011, plaintiffs moved to vacate the foregoing order and judgments. The court denied said motion by order dated September 16, 2011.
The present action was commenced by summons and complaint filed on May 19, 2011 under index number 11452/11. Plaintiffs, now suing both individually and as administrator, set forth causes of action for medical malpractice and negligence, loss of consortium, and wrongful death.
In the present motion, plaintiffs seek dismissal of the defendants' affirmative defenses, as set forth, contending that CPLR 205(a) permits a plaintiff to refile an action within six months of its dismissal, as long as the initial case was not dismissed on its merits. That subsection, as applicable here, reads as follows:
If 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, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, 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.
Plaintiffs rely on the holding in Carrick v Central Gen. Hosp. (51 N.Y.2d 242');">51 N.Y.2d 242 ), where the Court of Appeals rejected, as a basis for withholding the relief afforded by § 205(a), the plaintiff's failure to commence the first lawsuit through a duly-appointed administrator ("the prior action commenced by the plaintiff was fatally flawed; and...the existence of such a fatal flaw' is not in itself a legitimate ground for denying the plaintiff use of CPLR 205 [subd. (a)]" [ id. at 248]). Plaintiffs here contend that a case which is dismissed for lack of capacity to sue is not one which is dismissed on the merits, and is therefore afforded the six-month extension afforded by CPLR 205(a).
Defendants oppose by contending that the prior action was dismissed because of a lack of standing and was void ab initio, since Brown had no standing to bring a lawsuit on behalf of his wife, then living (see CPLR 1201 ["(a) person shall appear by his guardian ad litem...if he is an adult incapable of adequately prosecuting or defending his rights"]). They assert that there is no authority for representation of a party by a "proposed" guardian ad litem, ...