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Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced

The Second Department affirmed the dismissal of the action because the plaintiff had not received letters of administration at the time the summons with notice was filed and because the plaintiff did not allege any injury to him individually.  The court also noted that the plaintiff did not have standing (no representative capacity at the time the action was commenced) to request more time to serve the complaint:

A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death … . Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent's estate and, thus, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity … . Moreover, although the action was commenced by the plaintiff, both individually and as “executor” of the decedent's estate, no cause of action asserted any injury or wrongdoing to him … . Thus, the Supreme Court also properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff individually.

Moreover, as the plaintiff lacked standing to sue in his representative capacity at the time he commenced the action, he could not establish any meritorious basis to extend his time to serve the complaint … . Shelley v Sooth Shore Healthcare, 2014 NY Slip Op 08625, 2nd Dept 12-10-14

 

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT’S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).
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DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).
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