The First Department, reversing Supreme Court, determined the medical malpractice/wrongful death action should not have been dismissed because the letters of administration were issued within six months of the prior dismissal. The argument that Supreme Court used the wrong date to calculate the six-month period for re-filing a lawsuit pursuant to CPLR 205 (a) could be raised for the first time on appeal:
On appeal, plaintiff argues for the first time that the prior action was finally terminated when the October 2016 order granting the hospital’s motion was issued, so that the court used the wrong date to calculate when the six-month savings period under CPLR 205(a) began to run. We will consider this argument, since it raises a legal question appearing on the face of the record which could not have been avoided … .
While plaintiff, as voluntary administrator, lacked the legal capacity to enforce decedent’s personal injury and wrongful death claims on behalf of the estate in this second action (Surrogate’s Court Procedure Act § 1306 … ), he could remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a) … . In applying CPLR 205(a), we bear in mind that it is designed to ameliorate the potentially “harsh consequence of applying a limitations period where the defending party has had timely notice of the action” … . Because the first action was finally terminated on October 18, 2016, and the letters of administration were issued on April 18, 2017, on the last day of the six-month savings period (CPLR 205[a]), plaintiff timely obtained legal capacity to pursue the claims in this action … . Rodriguez v River Val. Care Ctr., Inc., 2019 NY Slip Op 06370, First Dept 8-27-19