AS EXECUTOR OF THE ESTATE OF CAROL ANN DEQUARTO v. AND OR IDEAL HOME CARE SERVICES AGENCY BETHESDA ELITE CARE INC (2025)

Upon the following papers read on defendant Ideal Home Care Services, Inc., and/or d/b/a Ideal Home Care Services Agency motion to dismiss pursuant to CPLR 3211 (a), EPTL § 1-2.13, 5-4 (1) and 11-3.2: NYSCEF documents 1 thru 10; it is hereby

ORDERED defendant Ideal Home Care Services, Inc., and/or d/b/a Ideal Home Care Services Agency motion to dismiss pursuant to CPLR 3211 (a), EPTL § 1-2.13, 5-4 (1) and 11-3.2 is granted, without prejudice;

Plaintiff commenced this action on August 19, 2024, in an alleged representative capacity on behalf of Carol Ann Dequarto. Plaintiff alleges causes of action for negligence, and wrongful death. According to the complaint Carol Ann Dequarto passed away on August 18, 2022. Moving defendant has not answered, but rather moves to dismiss pursuant to CPLR 3211 (a) (3) maintaining that plaintiff lacks capacity to bring the action on behalf of decedent. Moving defendant also alleges that the complaint fails to state a cause of action and should be dismissed pursuant to CPLR 3211 (a) (7). In support of the motion, Ideal Home Care Services submits, among other things, the pleadings, and an affirmation of counsel. In opposition, plaintiff submits an affirmation of counsel and Letters Testamentary dated January 21, 2025

Only a "duly appointed" estate representative, i.e., one "who has received letters to administer the estate of a decedent," may maintain an action for wrongful death or a survival action on behalf of the estate of a decedent (see EPTL §§ 1-2.13; 5-4.1). When a wrongful death or survival action is commenced prior to the issuance of the requisite letters, it must be dismissed under CPLR 3211(a) (3) for lack of standing and lack of capacity (see Shelley v South Shore Healthcare, 123 AD3d 797, 999 NYS2d 103 [2d Dept 2014]). In opposition, plaintiff has demonstrated that on January 21, 2025, plaintiff received Letters Testamentary authorizing this action. As the initial action was commenced without authority it is dismissed, without prejudice. The Court does not reach on this motion the applicability of CPLR 205 [a] or the statute of limitation.

E N T E R :

Hon. Paul M. Hensley

Justice of the Supreme Court

Date: February 18, 2025

Riverhead, New York

Paul M. Hensley, J.