Should the Statute of Limitations be tolled for bringing a wrongful death action when the decedent was survived by his mother and sole distributees who are infants fathered out of wedlock and their mothers were available to apply for letters of administration?

This court holds that regardless of any other individuals' availability to apply for letters of administration, the statute is tolled until that time as a guardian is appointed for the infant distributees or the distributees reach majority, whichever is earlier.

Defendants move to amend their answers to assert the affirmative defense of Statute of Limitations and to dismiss the plaintiff's wrongful death action as time-barred. This action arises out of the death of Plaintiff, Shamel Gary McKinney, whose only heirs and distributees were two infants, Jahmel Micah McKinney and Shamel Nigel McKinney, whom plaintiff fathered out of wedlock, with two separate women. Plaintiff was also [*2]survived by his mother, Tanya Hartman.

On November 23, 2007, while in co-defendant's restaurant/lounge Mr. McKinney was allegedly stabbed by Anthony Taylor. The instant action was commenced on November 24, 2009. In the interim, on September 26, 2008, Stephanie Wilson, mother of Jahmel Micah McKinney, one of decedent's sons, was appointed Guardian of the Property of her son. On December 5, 2008, Philshanda Ann Warren, the mother of decedent's other son was appointed likewise as Guardian of the Property of Shamel Nigel McKinney. Thereafter, both mothers waived their respective legal rights to be appointed as Administratrix of the Estate to Tanya Hartman. Ms. Hartman was appointed Administratrix of the Estate of her late son on October 5, 2009.

Preliminarily, it should be noted that it is well settled that in the absence of surprise of prejudice, leave to amend a pleading shall be freely given by the Court. Pike v. New York Life Ins. Co., 72 AD3d 1043[2d Dep't 2010]. Plaintiff has not shown any prejudice nor alleged any surprise. Therefore, that portion of defendants' motion which seeks to amend the answer is granted.

However, the remainder of defendants' motion which seeks to dismiss the wrongful death action is denied. Initially, the "confluence of the pertinent EPTL, SCPA and CPLR provisions give rise to an unusual—perhaps unique— problem." Hernandez v NYCHHC, 78 NY2d 687, 693 [App Ct. 1991]. First, EPTL §5-4.1 provides a that a decedent's personal representative,^[FN1]may maintain an action for the benefit of the distributees of the estate. Second, SCPA §1001 provides that distributees have a prior right to letters of administration. However, an infant is ineligible to receive such letters. SCPA §707[1][a]. Third, SCPA §1001 and § 707 make it impossible for anyone to assume the role of personal representative until a guardian is appointed for an infant distributee.^[FN2] CPLR §208 only permits tolling the Statute of Limitations in the situation where the person entitled to bring the action is under a disability at the time of accrual. See Hernandez, 78 NY2d 687 [App Ct. 1991].

The question then is whether the infancy of the distributee is a disability attributable to a "person entitled to bring the action." See Hernandez, 78 NY2d 687 [App Ct. 1991]. If CPLR §208 was applied mechanically the infant distributees would be deprived of an opportunity to bring suit.

New York declines to construe the statutes in a manner which would deny the infant distributees' right to bring an action. Rather the toll is construed to apply until the earliest moment that a personal representative or "potential personal" representative exists, whether by appointment of a guardian for the infant distributee or the infant distributee [*3]attaining majority, whichever comes first. Hernandez, 78 NY2d 687 [App Ct. 1991].^[FN3] In the instant matter, that would have been the date on which the infants' mothers were appointed as Guardians of the Property.^[FN4]

Defendants' assertion that the decedent's mother and the distributees' mothers were "potential people," able to bring the action, and that they should have acted faster to bring the action within two years of decedent's death is not supported by the law. The "potential person" comes into being when there is an appointment of a guardian or sole distributee reaches majority, whichever is earlier, at which time letters of administration may be issued, and a personal representative may assume the role of the plaintiff. Hernandez, 78 NY2d 687, 694 [App Ct. 1991].

As there is a clear definition of "potential person," this Court declines to adopt defendants' alternative definition and finds that the statute was tolled until the mothers were appointed Guardians of the Property of their infant sons. The action was therefore brought in a timely manner. Those parts of the motions which seek to dismiss the wrongful death action are denied.This constitutes the decision and order of the court.

J.S.C.