LA BOY v. CHILDREN HOSPITAL OF BUFFALO (1998)

Supreme Court properly dismissed this wrongful death action on the ground that plaintiff did not have the capacity to sue until the Statute of Limitations had expired.   Plaintiff, who commenced this action individually and on behalf of her infant son, failed to obtain letters of administration until almost four years after commencement of the action and six years after her son's death (see, George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 176-177, 417 N.Y.S.2d 231, 390 N.E.2d 1156;  Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027;  Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8).

The court also properly denied plaintiff leave to amend the complaint to add a cause of action for conscious pain and suffering.   Although plaintiff commenced the action within the applicable 21/212 year limitation period for medical malpractice actions set forth in CPLR 214-a, she did not have letters of administration at that time.   Plaintiff's amended pleading, served more than 21/212 years after the expiration of the Statute of Limitations, cannot relate back to the wrongful death action because that action was properly dismissed (see, Goldberg v. Camp Mikan-Recro, supra, at 1029-1030, 398 N.Y.S.2d 1008, 369 N.E.2d 8;  see also, Mogavero v. Stony Creek Dev. Corp., 53 A.D.2d 1021, 385 N.Y.S.2d 899).

Order unanimously affirmed without costs.

MEMORANDUM: