DEUTSCH v. LoPRESTI (2000)

In an action to recover damages for conscious pain and suffering and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Golia, J.), dated June 9, 1999, which denied their motion to amend the caption to add “Cynthia Deutsch, as Administratrix of the Estate of Maxwell Deutsch” and granted the respective cross motions of the defendants Anthony LoPresti, John Biordi, and Winthrop University Hospital to dismiss the first and fifth causes of action insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The Supreme Court properly granted the respondents' respective cross motions to dismiss the first and fifth causes of action to recover damages for conscious pain and suffering of the decedent and wrongful death insofar as asserted against them, on the ground that the plaintiffs did not have the capacity to sue.   The plaintiffs commenced this action individually and on behalf of their infant son, but they had not obtained letters of administration at the time that the action was commenced (see, Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8;  McCormack v. County of Westchester, 255 A.D.2d 296, 679 N.Y.S.2d 659;  LaBoy v. Children's Hosp. of Buffalo, 249 A.D.2d 944, 672 N.Y.S.2d 183).

The plaintiffs' contention that the Supreme Court erred in failing to grant them leave to commence a new action pursuant to CPLR 205(a) is not properly before this court, since it was not raised before the Supreme Court.

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.