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Rodriguez v. River Valley Care Center Inc.

Supreme Court, Bronx County

July 18, 2017

Reinaldo Rodriguez as Voluntary Administrator of the Estate of EDEIDA RODRIGUEZ, Plaintiff,
River Valley Care Center Inc. and GRACIE SQUARE HOSPITAL, Defendants.

          Plaintiff's Attorney: Michael B. Zaransky, Esq. Parker Waichman, LLP

          River Valley Attorney: Ericka Fang, Esq. Kaufman Borgeest & Ryan, LLP

          Gracie Square Attorney: Vincent L. Gallo, Esq. Heidell, Pittoni, Murphy & Bach, LLP

          Joseph E. Capella, J.

         The following papers numbered 1 to 8 read on this motion and cross-motion noticed on April 17, 2017, and cross-motion noticed on May 26, 2017, and duly submitted as no. _____ on the Motion Calendar of __________.







         There is little dispute as to the facts in this wrongful death action. Edeida Rodriguez ("Edeida") died on December 27, 2013, and on March 18, 2016, her son, Reinaldo Rodriguez ("Reinaldo"), commenced an action ("initial action") as the "proposed administrator" of Edeida for personal injuries and wrongful death as a result of the negligent medical treatment provided by the defendants. Since formal letters of administration had not been issued authorizing Reinaldo to bring suit on behalf of Edeida's estate, the initial action was dismissed for lack of legal capacity (CPLR 3211(a)(3)) by court order dated May 26, 2016 (and entered June 1, 2016). On November 18, 2016, Reinaldo commenced the instant identical action, but this time as the "voluntary administrator, " and the defendants were served with the summons and complaint on November 23, 2016. On December 19, 2016, the defendant, Gracie Square Hospital ("Gracie Square") answered. The defendant, River Valley Care Center, Inc. ("River Valley"), never answered within the prescribed 20 day period after service of the summons and complaint (CPLR 320); however, on March 17, 2017, it did make the instant motion for dismissal pursuant to CPLR 3211(a)(3). According to River Valley's motion, the plaintiff lacks legal capacity to commence the instant action because a voluntary administrator cannot enforce a claim for wrongful death or for personal injuries to the decedent. (SCPA § 1306(3).) On April 4, 2017, Gracie Square cross-moved for the same relief, and on May 12, 2017, the plaintiff cross-moved to amend the summons and complaint to reflect plaintiff's receipt of letters of administration dated April 18, 2017, and for a default judgment (CPLR 3215) against River Valley.

         Before addressing the merits of River Valley's motion to dismiss, the court will first address the plaintiff's argument set forth in its opposition and cross-motion that said motion by River Valley is untimely inasmuch as River Valley did not secure an extension of time to appear. (CPLR § 2004 [extension of time permitted for good cause]; U.S. Bank v. Gonzalez, 99 A.D.3d 694');">99 A.D.3d 694 [2nd Dept 2012].) While there is a strong public policy to dispose of cases on their merits (Berardo v. Guillett, 96 A.D.3d 459 [1st Dept 2011]), the affirmation in support of the motion by River Valley does not address its untimeliness, nor does it set forth a good cause for the delay. (CPLR § 2004.) However, it is clear from the opposition and reply papers that before this motion was made, the attorneys unsuccessfully attempted to negotiate an extension of time for River Valley. To the extent that these negotiations may not qualify as a good cause for the delay, there is also a letter dated March 10, 2017, from plaintiff to River Valley indicating that it had not received an answer. A copy of the summons and complaint was included in the letter, with instructions to forward same to its "attorney or insurance carrier, so that they may put in an answer." Lastly, the letter provides that "failing to hear from (emphasis added) either you or your attorney or insurance carrier within twenty (20) days of receipt of this letter, [plaintiff] shall have no alternative but to take a default judgment against you." And as already noted, seven [*2]days later (i.e., March 17, 2017), the plaintiff heard from River Valley in the form of this motion. Based on the aforementioned, this court is satisfied that good cause has been demonstrated in that River Valley was provided a 20 day extension from March 10, 2017, to respond to the summons and complaint. As such, River Valley's motion is timely and plaintiff's request for a default judgment is denied.

         Turning now to the merits of the defendants' request, it must be noted that a wrongful death action is purely a creature of statute, specifically section 5-4.1 of the Estates, Powers and Trusts Law ("EPTL"), and the corresponding two year statute of limitations runs from the date of decedent's death. Moreover, the existence of a qualified administrator is a condition precedent to and an essential element of the maintenance of such an action, and the statutory right to recover for wrongful death does not arise until an administrator has been named through the issuance of letters of administration from the Surrogate Court. (Carrick v. Central, 51 N.Y.2d 242');">51 N.Y.2d 242 [1980]; Dawson v. Langer, 106 A.D.2d 152');">106 A.D.2d 152 [4th Dept 1985].) In opposing the motion by River Valley and in support of his cross-motion to amend, the plaintiff relies upon Nieves v. 331 E. 109th St (112 A.D.2d 59');">112 A.D.2d 59 [1st Dept 1985]) and Kilmer v. Moseman (124 A.D.3d 1195');">124 A.D.3d 1195 [3rd Dept 2015]). As noted in the reply papers by River Valley, Nieves and Kilmer are inapplicable because they were actions in which one of the parties died during (emphasis added) the pendency of the litigation. It is well-settled that when this occurs, the action is ...

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