Lona Palmieri, as Proposed Administratrix of the Estate of Aaron Block, Deceased, Plaintiff, v. LLC (2023)

The following e-filed documents listed on NYSCEF (Motion #001) numbered 6-8, 24 AND (Motion #002) numbered 9-23 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on June 29, 2023, on Motion Sequence #001 and Motion Sequence #002, Motion Sequence #001 and Motion Sequence #002 are resolved and therefore, it is hereby,

ORDERED, that Defendant's request to dismiss Plaintiff's complaint pursuant to CPLR § 3211 [a] [3] on the ground of Plaintiff's lack of legal capacity to commence this action is GRANTED, without prejudice to renew, and it is further;

ORDERED, that Defendant's request to dismiss Plaintiff's complaint pursuant to CPLR § 3211 [a] [5] on the ground that the action is barred by the statute of limitations is moot and DENIED, without prejudice to renew, and it is further;

ORDERED, that Plaintiff's request to stay the matter pursuant to CPLR § 2201 is DENIED, without prejudice to renew, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Procedural History

On or about April 26, 2023, Plaintiff, as Proposed Administrator of the Estate of the Decedent, Aaron Block, commenced this action to recover for the personal injuries, mental anguish, and untimely death of the Decedent while in the care of the Defendant. Defendant filed Motion Sequence #001 on May 25, 2023, seeking (a) dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [3] upon the grounds that she lacks the legal capacity to commence this action; (b) dismissal of the complaint pursuant to CPLR § 3211 [a] [5] alleging the statute of limitations has expired; and (c) such other and further relief as the Court may deem proper.

On June 6, 2023, Plaintiff filed in cross Motion Sequence #002 seeking (a) a stay pursuant to CPLR § 2201 pending a determination of an Article 78 Proceeding involving the COVID-19 Actions Against Nursing Homes and (b) such other, further and different relief as the Court may deem just and proper. Defendant filed reply on June 28, 2023. Plaintiff waived reply on the record and oral argument was heard on June 29, 2023.

II. Facts

This action stems from instances of alleged medical malpractice that took place on or about January 1, 2016, continuing through July 9, 2020. During that time, Decedent was in the exclusive care of the Defendant, and, during that time, Plaintiff contends the Decedent was caused to suffer, by no fault of his own, severe, and permanent personal injuries, mental anguish, and untimely death due to the carelessness and negligence of the Defendant. Decedent was treated by the Defendant prior to his death on July 9, 2020. The case caption reflects that this action was commenced on behalf of the Decedent by Lona Palmieri as a "Proposed Administrator" of the decedent's Estate. Plaintiff has commenced this action without first being designated as the legal representative of the Estate of the Decedent. To date, no estate has been set up and no Letters of Administration or Letters Testamentary have been issued in connection herewith.

On October 19, 2022, the Litigation Coordinating Panel (LCP) issued a Final Order of Coordination directing the coordination of:

all cases against nursing homes, as defined in Public Health Law § 2801 (2), and residential health care facilities, as defined in Public Health Law § 2801 (3), alleging that they failed to comply with governmental statutes, regulations, and guidance for protecting and caring for their patients, and/or failed to exercise reasonable care in protecting and caring for the patients during the COVID-19 pandemic, resulting in injury or death. (NY St Cts Filing [NYSCEF] Doc No. 20).

On or about March 1, 2023, Eger Health Care and Rehabilitation brought and action against the LCP pursuant to CPLR Article 78 and CPLR Article 30 seeking the final Order of the LCP to be declared null and void. A final adjudication in that matter has not yet been reached, and the LCP has not been stayed, thus, it remains in full force and effect.

III. Legal Capacity of Plaintiff to Bring Action

"While CPLR § 3211 [a] [3] speaks to the plaintiff's lack of 'capacity' as a basis for dismissing complaints, decisional authorities have addressed a party's lack of standing as within the scope of the same statutory subdivision" (see Wilmington Sav. Fund Socy., FSB v. Matamoro, 200 AD3d 79 [2d Dept 2021] citing Wells Fargo Bank Minn. v. Mastropaolo, 42 AD3d 239 [2d Dept 2007]). "Where a CPLR § 3211 [a] [3] motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (see id citing Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688 [2d Dept 2020]; New York Community Bank v McClendon, 138 AD3d 805 [2d Dept 2016]; Arch Bay Holdings, LLC-Series 2010B v. Smith, 136 AD3d 719 [2d Dept 2016]).

"The presentation of prima facie evidence is a concept more frequently associated with motions for summary judgment under CPLR § 3212 but is also applied to CPLR 3211 [a] motions where the basis for dismissal is standing (see id). The burden is not on the plaintiff to affirmatively establish its standing for the dismissal motion to be denied" (see id citing Deutsche Bank Natl. Trust Co. v Benson, 179 AD3d 767 [2d Dept 2020]; Deutsche Bank Trust Co. Ams. v. Vitellas, 131 AD3d 52 [2d Dept 2015]; U.S. Bank N.A. v Guy, 125 AD3d 845 [2d Dept 2015]; J.P. Morgan Chase Bank, N.A. v Coleman, 119 AD3d 841 [2d Dept 2014]; HSBC Mtge. Corp. (USA) v MacPherson, 89 AD3d 1061 [2d Dept 2011]). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" (see id citing U.S. Bank N.A. v Trulli, 179 AD3d 740 [2d Dept 2020]; U.S. Bank N.A. v Guy, 125 AD3d 845 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Logan, 183 AD3d 660 [2d Dept 2020]).

Defendant contends that Plaintiff commenced this action without first being designated as the legal representative of the Estate of the decedent, AARON BLOCK, and, as such, is not a proper party to bring the instant action. No Estate has been set up and no Letters of Administration or Letters of Testamentary have been issued.

"A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent's distributees on account of his or her death" (see Jordan v Jordan, 120 AD3d 632 [2d Dept 2014] citing EPTL § 1-2.13; EPTL § 5-4.1; EPTL § 11-3.2; Mingone v. State, 100 AD2d 897 [2d Dept 1984]).

"[L]ike most of the other statutory requirements for wrongful death actions, the statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit and, as such, is an essential element of the claim" (see Carrick v. Central General Hospital, 51 NY2d 242 [1980] citing George v. Mt. Sinai Hospital, 47 NY2d 170 [1979]). In an action, inter alia, to recover damages for medical malpractice, etc., it "may be brought only by a qualified personal representative of the decedent and the 'proposed administratrix' lacked capacity to proceed in this action" (see Muriel v. New York City Health & Hosps. Corp., 52 AD3d 792 [2d Dept 2008] citing Carrick v. Central General Hospital, 51 NY2d 242 [1980]).

The Plaintiff herself points out the SCPA § 1306 [3] "The voluntary administrator shall have no power to enforce a claim for the wrongful death of or a claim for personal injuries to the decedent."

In the instant action, Plaintiff clearly has not obtained or served Letters of Administration. She commenced this action as "Proposed Administrator". There is no indication when letters will be obtained.

The Court finds the proposed Administratrix Lona Palmieri, lacks the legal capacity to sue on behalf of the estate, as she does not have the appropriate letters of administration necessary to proceed in this action and the Defendant's request for dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [3] is GRANTED, without prejudice to renew.

IV. Statute of Limitations Issue

The dismissal of this matter pursuant to CPLR § 3211 [a] [3] due Plaintiff's lack of legal capacity has rendered moot the issue of the Defendant's claim pursuant to CPLR § 3211 [a] [5] that the Plaintiff has failed to comply with the statute of limitations requirement. Accordingly, Defendant's request for dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [5] is DENIED, without prejudice to renew.

V. Stay Pursuant to Pending Article 78 Proceeding

CPLR § 2201 provides that "[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." "Thus, 'a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources' " (see Matter of Hersh, 198 AD3d 776 [2d Dept 2021] quoting Chaplin v National Grid, 171 AD3d 691 [2d Dept 2019]; Matter of Tenenbaum, 81 AD3d 738 [2d Dept 2011]; citing Felix v Law Offs. of Thomas F. Liotti, 129 AD3d 773 [2d Dept 2015]; HSBC Bank USA, N.A. v Posy, 98 AD3d 945 [2d Dept 2012]).

CPLR § 5519 [c] provides "[t]he court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b) or this subdivision, except that only the court to which an appeal is taken may vacate, limit or modify a stay imposed by paragraph one of subdivision (a)."

On October 19, 2022, after considering all arguments and comments, the Litigation Coordinating Panel issued a Final Order of Coordination in the caption titled In Re COVID Litigation Against Nursing Homes, Index No. LCP 0001/2022. The Final Order directs the pre-trial coordination of pending and subsequently filed actions brought against nursing homes and health care facilities, as defined in Public Health Law § 2801 [2] and Public Health Law § 2801 [3], related to their response to the COVID-19 pandemic. (NY St Cts Filing [NYSCEF] Doc No. 16).

Plaintiff contends that "[i]f the case proceeds with the preliminary conference while the Article 78 Proceeding is pending, Plaintiff would be forced to engage in discovery in Richmond County when this case could be transferred pursuant to the LCP Order. This would not only be a waste of judicial resources and stand in the face of judicial economy but could end in inconsistent result" (NY St Cts Filing [NYSCEF] Doc No. 14).

While the Court has broad discretion to grant a stay, in this matter, where the Plaintiff has not obtained or served Letters of Administration, commenced this action as "Proposed Administrator" and has provided the Court with no indication when such letters may be obtained, the Courts previous decision of dismissing the matter renders the question of judicial economy in completing a preliminary conference as moot. Plaintiff has no viable action as she lacks Letters of Administration and does not have the capacity to bring this action.

Further, Plaintiff cites CPLR Article 78 to request a stay. However, the actual CPLR Article 78 proceeding sought to enjoin statewide enforcement of coordination and to dissolve the order of coordination. Plaintiff's argument is misplaced. There is nothing in the CPLR Article 78 motion that stays any action, any motion to dismiss, or any motion to dismiss a proposed administrator. It merely stays coordination, which ironically, plaintiff is attempting to force in their cross-motion. Thus, their position is not even supported by the Article 78 proceeding.

Accordingly, Plaintiff's request to stay the matter pursuant to CPLR § 2201 is DENIED, without prejudice to renew.

Decretal Paragraphs

It is hereby ORDERED that Defendant's motion [Mot. Seq. #001] seeking dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [3] is GRANTED, without prejudice to renew, and it is further;

ORDERED, that Plaintiff's motion [Mot. Seq. #002] seeking a stay pursuant to CPLR § 2201 is DENIED, as moot, without prejudice to renew, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

Dated: July 6, 2023

Staten Island, New York

E N T E R,

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT

Ronald Castorina, Jr., J.