CAPPOLA v. TENNYSON COURT TENNYSON COURT LLC LLC (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the cross-motion is denied, the motion is granted in its entirety, and the complaint is dismissed without prejudice.

Memorandum: This action for, inter alia, wrongful death and violations of Public Health Law §§ 2801-d and 2803-c was commenced by plaintiff as “Proposed Executor” of the estate of Rose Cappola (decedent). Defendants appeal from an order that, insofar as appealed from, denied in part their motion to dismiss the complaint and granted plaintiff's cross-motion to substitute the executors of decedent's estate as the named plaintiffs. We reverse.

An action for wrongful death may be maintained by “[t]he personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees” (EPTL 5-4.1 [1]). Similarly, an action for injury to a person or property “may be brought ․ by the personal representative of the decedent” (EPTL 11-3.2 [b]). As relevant here, “personal representative” is defined in EPTL 1-2.13 as “a person who has received letters to administer the estate of a decedent.”

Here, as a “[p]roposed” executor who had not obtained letters to administer decedent's estate, plaintiff was not a personal representative within the meaning of the Estates, Powers and Trusts Law at the time the action was commenced and thus did not have standing to commence an action on behalf of decedent's estate (see Freeland v. Erie County, 122 A.D.3d 1348, 1349-1350, 997 N.Y.S.2d 860 [4th Dept. 2014]; Yates v. Genesee County Hospice Found., 278 A.D.2d 928, 928, 718 N.Y.S.2d 765 [4th Dept. 2000], lv denied 96 N.Y.2d 714, 729 N.Y.S.2d 441, 754 N.E.2d 201 [2001]; see generally Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 252-253, 434 N.Y.S.2d 130, 414 N.E.2d 632 [1980]). Thus, we agree with defendants that Supreme Court erred in granting plaintiff's cross-motion to substitute as plaintiffs the executors of decedent's estate inasmuch as “[s]ubstitution ․ is not an available mechanism for replacing a party ․ who had no right to sue with one who has such a right” (Matter of C & M Plastics [Collins], 168 A.D.2d 160, 162, 571 N.Y.S.2d 343 [3d Dept. 1991]; see generally National Fin. Co. v. Uh, 279 A.D.2d 374, 375, 720 N.Y.S.2d 17 [1st Dept. 2001]).

We further agree with defendants that the court erred in denying that part of their motion seeking to dismiss the complaint on the ground that the action was brought by a party without standing (see Freeland, 122 A.D.3d at 1349-1450, 997 N.Y.S.2d 860). We therefore grant the motion in its entirety and dismiss the complaint without prejudice to recommence the action pursuant to CPLR 205 (a) (see Carrick, 51 N.Y.2d at 252-253, 434 N.Y.S.2d 130, 414 N.E.2d 632; Yates, 278 A.D.2d at 928-929, 718 N.Y.S.2d 765).

In light of our determination, we do not address defendants’ remaining contentions.