You are here: / / Action Dismissed Because Letters of Administration Had Not Been Issued...
,

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

 

You might also like
PLAINTIFF WAS A SPECIAL EMPLOYEE, HIS ONLY AVAILABLE REMEDY FOR HIS ON THE JOB INJURY WAS WORKERS’ COMPENSATION (SECOND DEPT).
DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE BANK LACKED STANDING IN HIS ANSWER AND DID NOT OPPOSE THE BANK’S MOTION FOR SUMMARY JUDGMENT, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STANDING ISSUE AND DENIED PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THAT GROUND (SECOND DEPT).
Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies in Deposition Testimony Should Have Been Granted
ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED.
CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS.
APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT).
PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).
Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations in a Stipulation

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented Repeated Invitations to Review 60 to 80 Banker’s Boxes of Documents In...