PEREZ v. LEVISTER REDEVELOPMENT COMPANY LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, the defendant Natures Finest Security, LLC, and the defendants Levister Redevelopment Company, LLC, and All County Management, LLC, separately appeal, from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated July 12, 2024. The order, insofar as appealed from, denied those branches of the separate motions of the defendant Natures Finest Security, LLC, and the defendants Levister Redevelopment Company, LLC, and All County Management, LLC, which were to dismiss the complaint insofar as asserted against each of them, and granted the plaintiff's motion, inter alia, for leave to amend the complaint to substitute herself, as administratrix of the estate of David Andrew DeGrace, for herself, as proposed administratrix of the estate of David Andrew DeGrace.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with one bill of costs to the defendants appearing separately and filing separate briefs, those branches of the separate motions of the defendant Natures Finest Security, LLC, and the defendants Levister Redevelopment Company, LLC, and All County Management, LLC, which were to dismiss the complaint insofar as asserted against each of them are granted, and the plaintiff's motion, inter alia, for leave to amend the complaint to substitute herself, as administratrix of the estate of David Andrew DeGrace, for herself, as proposed administratrix of the estate of David Andrew DeGrace, is denied.

This action was commenced in February 2020 by Anita Marie Perez, “individually and as proposed Administratrix of the Estate of David Andrew DeGrace” (hereinafter the decedent). In July 2023, the defendant Natures Finest Security, LLC (hereinafter Natures Finest), moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(3) for lack of capacity and pursuant to CPLR 1021 for failure to substitute a personal representative of the decedent within a reasonable time. In August 2023, the defendants Levister Redevelopment Company, LLC, and All County Management, LLC (hereinafter together the Levister/All County defendants), separately moved, among other things, to dismiss the complaint insofar as asserted against them on the same grounds. In opposition to the motions, the plaintiff submitted a copy of a decree of the Surrogate's Court, Westchester County, dated October 20, 2020, which granted limited letters of administration for the decedent's estate to the plaintiff. In March 2024, the plaintiff moved for leave to amend the complaint to substitute herself as “Administratrix” of the decedent's estate in place of “proposed Administratrix” and related relief. The Supreme Court, inter alia, denied those branches of the defendants' motions and granted the plaintiff's motion. Natures Finest and the Levister/All County defendants separately appeal.

The plaintiff's motion, among other things, for leave to amend the complaint to substitute herself as “Administratrix” of the decedent's estate in place of “proposed Administratrix” should have been denied. Here, the plaintiff failed to seek substitution within a reasonable time (see Green v. Maimonides Med. Ctr., 172 AD3d 824; Riedel v. Kapoor, 123 AD3d 996; see also Mesniankina v. 302 BBA, LLC, 219 AD3d 1516; Byner v. Murray–Taylor, 208 AD3d 1214), and failed to establish the action's potential merit (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356).

“A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death” (Shelley v. South Shore Healthcare, 123 AD3d 797, 797; see EPTL 1–2.13, 5–4.1[1]; 11–3.2[b]). “Thus, a ‘proposed administrator’ who has not obtained letters of administration lacks capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent's estate” (Estate of Moore v. Nassau Operating Co., LLC, 245 AD3d 798, 799). Accordingly, dismissal is proper pursuant to CPLR 3211(a)(3) where, as here, an action is commenced prior to the plaintiff receiving letters of administration (see Tumminia v. Staten Is. Univ. Hosp., 241 AD3d 17; Shelley v. South Shore Healthcare, 123 AD3d at 798). As the plaintiff makes no allegations in support of any claim brought in her individual capacity, the Supreme Court should have directed dismissal of the complaint.

The plaintiff's contention that dismissal is improper because the defendants failed to raise lack of capacity as an affirmative defense is improperly raised for the first time on appeal.

The defendants' remaining contentions either need not be reached in light of our determination, are not properly before this Court, or are without merit.

BARROS, J.P., IANNACCI, GOLIA and OTTLEY, JJ., concur.