By notice of motion filed on February 7, 2007, defendants Mladen Solar and Donald McCord jointly move pursuant to CPLR §3211(a)(3) under motion sequence number one to dismiss the complaint on the basis that plaintiff lacks the capacity to sue. By notice of cross motion filed on February 15, 2007, defendants Ralph Peluso, Brooklyn Family Medical Associates, and Staten Island University Hospital jointly move under motion sequence number two for the same relief on the same basis. By notice of cross motion filed on March 2, 2007, defendant Joseph McGinn also moves under motion sequence number three for the same relief on the same basis. The movants, under motion sequence numbers one, two and three are hereinafter referred to collectively as defendant-movants. Plaintiff opposes the motions and cross-motion of the defendant-movants.

By notice of cross-motion filed on March 8, 2007, plaintiff moves under motion sequence number four to substitute the parties and amend the caption. By notice of cross-motion filed on March 20, 2007, plaintiff moves, pursuant to CPLR §3025(b), under motion sequence number five for leave to amend the summons and complaint. Motion sequence numbers four and five are hereinafter referred to collectively as plaintiff's motions to amend. Defendant-movants oppose plaintiff's motions to amend.

UNDISPUTED FACTS

The following facts are undisputed. On December 26, 2004, Pasquale Caracciolo passed away. On December 13, 2006, his surviving spouse, Roseann Caracciolo, commenced the action [*2]by filing a summons and complaint with the Kings County Clerk's office. She named herself as proposed administrator of her husband and herself as an individual plaintiff. The complaint alleges fifty six allegations of fact in support of three causes of action. The first cause of action sounds in medical malpractice against all defendants in connection with their medical care and treatment of the Pasquale Caracciolo. The second cause of action asserts defendants' liability for causing Pasquale Caracciolo's untimely death. The third cause of action asserts Roseann Caracciolo's loss of the services and society of her husband by his injury and untimely death. The caption of complaint contains two plaintiffs: Roseann Caracciolo, as proposed administratix of the estate of Pasquale Caracciolo; and Roseann Caracciolo, individually.

In January of 2007, all the defendants answered the complaint and issue was joined between all parties. On February 20, 2007, the Surrogate's Court of the State of New York, Richmond County appointed Roseann Caracciolo as administratix of the estate of Pasquale Caracciolo through issuance of letters of administration. At the time Roseann Caracciolo commenced the action, she had not yet been appointed as the representative of her husband's estate.

Each of defendant-movants' dismissal motions is supported by an affirmation of counsel, a copy of the summons and complaint and a copy of the movants' respective answer to the complaint. Defendant Mladen Solar and Donald McCord also assert in their opposition to plaintiff's cross-motion sequence number four that it is untimely. This court adjourned all the motions and cross-motions from March 16 to April 20, 2007 to allow time for the parties to serve opposition and reply papers thus rendering this particular point moot. Each of the defendants' answers to the complaint asserts the affirmative defense of the plaintiff's lack of capacity to sue.

Defendant-movants' motions and cross-motions seek an accelerated judgment dismissing the complaint pursuant to CPLR§§ 3211(a)(3) and 3212 because the plaintiff lacked capacity to sue. Defendant-movants contend that this defect is not curable by amendment of either the caption or complaint.

CPLR Rule 3211 (a)(3) provides as follows:

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 3. the party asserting the cause of action has not legal capacity to sue

EPTL §5-4.1 provides in pertinent part as follows: Action by personal representative for wrongful act, neglect or default causing death of decedent

1. The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent's death.

CPLR § 205 (a) provides as follows:

Termination of action. (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the [*3]cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Plaintiff commenced the instant action for damages arising from the personal injuries and wrongful death of her spouse, who died on December 26, 2004, allegedly as a result of the negligent medical treatment he received at the hands of defendants. She filed the summons and complaint on December 13, 2006, approximately two weeks before the two-year statute of limitations for wrongful death actions would have expired. The wrongful death action is therefore timely commenced .

It should be noted that there is a distinction between an action for the personal injuries of the decedent and an action for the wrongful death of the decedent. The difference is that the action for personal injures of a decedent is brought on behalf of the estate of the deceased. A wrongful death action is brought not on behalf of the decedent's estate, but rather on behalf of the decedent's distributees and the damages recoverable are not in compensation for the injury sustained by the decedent, but rather for the injuries suffered by the distributees as a result of the decedent's death (George v. Mt. Sinai Hospital, 47 NY2d 170, 176 [1979]).

It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration (Carrick v. Central General Hospital, 51 NY2d 242, 250 [1980]). The New York State Court of Appeals specifically provided in Carrick, supra, that the statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring a wrongful death action and, as such, is an essential element of the claim.

"Non-appointment of the administrators before bringing the action is not merely a lack of capacity to sue, for that presupposes an existing cause of action, which the plaintiff is incapacitated to maintain. But the due appointment and qualification of the administrators are necessary elements to the existence of the cause of action" (George v. Mt. Sinai Hospital, supra at 177 citing Boffe v. Consolidated Tel. & Elec. Subway Co.,171 App Div 392, 394).

A personal injury claim on behalf of a decedent survives a decedent's death and must be brought by a party with capacity to sue. However, if such an action is brought by an improper representative of the estate, it is subject to dismissal based on the identity of the plaintiff and not on the lack of a pre-condition to sue.

On February 20, 2007, Roseann Caracciolo was finally appointed administrator of her husband's estate. However, she lacked the capacity to commence the instant action before the date of her appointment. The first cause of action for the personal injuries of Pasquale Caracciolo's personal injuries is properly dismissed based on the wrong identity of the plaintiff. In simplest terms, a personal injury action must be commenced by a living person or the duly appointed representative of the deceased injured person. The second cause of action for wrongful death is properly dismissed based on the failure to satisfy an element of a wrongful death complaint, namely, the statutory pre-condition of the appointment of an administrator for the estate of the deceased. The third cause of action is for Roseann Caracciolo's loss of her deceased husband's services and society. It is properly dismissed because it is derived from and dependent upon the viability of her [*4]husband's personal injury action. The derivative action must follows the dismissal of the personal injury action that it is dependent upon.

However, in accordance with CPLR §205 (a), the dismissal of the three causes of action are without prejudice to Roseann Caracciolo's right to recommence the action as administrator of Pasquale Carricicolo' estate (McGuire v. Southside Hospital, 301 AD2d 505 [2nd Dept 2003]; see also generally (Carrick v. Central General Hosp., 51 NY2d 242 [1980] and George v. Mt. Sinai Hospital, 47 NY2d 170 [1979]).

It is noted that the affirmation of plaintiff's counsel under motion sequence number three requests that the caption be amended to read, "Roseann Caracciolo, as proposed administratix of the estate of Pasquale Caracciolo; and Roseann Caracciolo, individually." Inasmuch as the caption is in this form, it is apparent that the text of the proposed amended caption is in error. A reading of the four corners of the affirmation of plaintiff's counsel as well as the opposition papers of the defendant-movants makes clear that all understood the intent of the cross-motion. Plaintiff seeks to amend the caption from proposed administratrix to actual administratix of the estate of her deceased husband. The court will ignore the defect pursuant to CPLR §2001. Plaintiff's cross-motions under sequence numbers four and five, to substitute the parties and amend the caption; and to amend the complaint are granted to the extent of dismissing the action without prejudice to the commencement of a new action pursuant to CPLR §205(a) (McGuire v. Southside Hospital, 301 AD2d 505 [2nd Dept 2003]).

The foregoing constitutes the decision and order of this court.

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J.S.C.