Limitation of Actions - Commencement of Action after Termination of Prior Action - Successive Recommencements under CPLR 205 (a)

NYC Health & Hospitals/Legal Affairs, Claims and Litigation, New York City (Marianne V. Macias of counsel), for defendants.

Redmond Law Firm PLLC, New York City (Cornelius Joseph Redmond of counsel), for plaintiff.

Defendants New York City Health and Hospitals Corporation, sued herein as The New York City Health & Hospitals Corporation and Kings County Hospital Center, move (seq No. 1) for an order, pursuant to CPLR 3211 (a) (3) and EPTL 5-4.1, dismissing plaintiff's complaint for lack of legal capacity.

This is an action asserting claims for medical malpractice, negligence, and wrongful death on behalf of Lynette Pilgrim (the decedent), arising from treatment which occurred on or about February 14, 2023. Decedent passed away on February 16, 2023.

On March 14, 2024, plaintiff commenced an action under index No. 507474/2024 (the 2024 action), as "proposed administrator" of the decedent's estate. That action was based upon the same claims underlying this action, and the medical malpractice and wrongful death claims were all timely when it was commenced (see General Municipal Law § 50-i [1]).

Upon motion by the defendants, the 2024 action was dismissed on October 16, 2024, on the grounds that plaintiff did not have the requisite letters of administration and therefore lacked legal capacity to sue (see CPLR 3211 [a] [3]; Snodgrass v Professional Radiology, 50 AD3d 883 [2d Dept 2008]).

On February 13, 2025, plaintiff commenced this second action by filing a summons and complaint. At the time of this action's commencement, the wrongful death claim was still timely, but the statute of limitations had expired for the medical malpractice and negligence claims. However, the action was commenced within six months of the 2024 action's dismissal pursuant to CPLR 205 (a), which allowed the non-wrongful death claims to be revived "within six months of the dismissal of the first action, even if the second action would otherwise be subject to a Statute of Limitations defense" (George v Mt. Sinai Hosp., 47 NY2d 170, 175 [1979]).

Notwithstanding, the original grounds for dismissal have not been cured, as plaintiff has not obtained letters of administration and is still named the "proposed administrator" of the decedent's estate in the instant action.{**87 Misc 3d at 366}

Now, defendants move to dismiss this second action for lack of legal capacity.

In opposition to the motion, plaintiff acknowledges that letters of administration have not yet been issued by Surrogate's Court. However, he argues this action was properly recommenced under CPLR 205 (a) and, if this action is dismissed, it should be without prejudice to recommence again within six months.

It is a statutory requirement that only a "personal representative, duly appointed in this state or any other jurisdiction," is authorized to bring an action to recover damages for wrongful death or personal injuries on behalf of a decedent's estate (EPTL 5-4.1 [1]; 11-3.2 [b]). A defendant is therefore entitled to dismissal under CPLR 3211 (a) (3) if the alleged representative of the estate lacks that authority. Generally, an administrator may cure this defect and recommence the action within six months through the CPLR 205 (a) savings provision, because such dismissal is not based on the merits, lack of personal jurisdiction, or neglect to prosecute (see Carrick v Central Gen. Hosp., 51 NY2d 242 [1980]; Snodgrass at 884-885).

Here, plaintiff recommenced this action and served defendants within six months of the 2024 action's dismissal, but he has yet to obtain letters of administration. Defendants have therefore established that the "proposed" administrator still has no legal capacity to bring the asserted causes of action on behalf of the decedent's estate, and this action must be dismissed in its entirety under CPLR 3211 (a) (3).

Plaintiff argues that should the court dismiss this action, he is entitled to recommence a third action pursuant to CPLR 205 (a), as the section permits an additional six-month extension from the date of this action's dismissal. Thus, the court must also address this issue. The statute provides, in relevant part,

"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 [*2]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 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{**87 Misc 3d at 367} 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." (CPLR 205 [a] [emphasis added].)

There is nothing in the statute addressing multiple or successive uses of CPLR 205 (a), but the plain language indicates that CPLR 205 (a) is applicable only if the claims would have been timely when the "prior action" was commenced, and only within six months of termination of that "prior action."

As discussed by the Court of Appeals in U.S. Bank N.A. v DLJ Mtge. Capital, Inc. (33 NY3d 72, 76 [2019]), the statute permits that "a subsequent action may be filed within six months of a non-merits dismissal of the initial timely-filed matter." The Court further elaborated,

"The effect of the statute is quite simple: if a timely brought action has been terminated for any reason other than one of the . . . reasons specified in the statute, the plaintiff may commence another action based on the same transactions or occurrences within six months of the dismissal of the first action, even if the second action would otherwise be subject to a Statute of Limitations defense, so long as the second action would have been timely had it been commenced when the first action was brought" (id. at 78, quoting George v Mt. Sinai Hosp. at 175 [emphasis added]).

The Second Department similarly set forth that the timeliness of "the prior action" is a necessary condition of CPLR 205 (a):

"CPLR 205 (a) is subject to three unyielding conditions. First, the new action will be permitted only if it would have been timely if commenced at the time of the prior action. Second, the new action must be commenced within six months of the termination of the prior action. Third, the prior action must be terminated for reasons other than its voluntary discontinuance, the failure to obtain personal jurisdiction over the defendant, neglect to prosecute, or a final judgment upon the merits." (Sokoloff v Schor, 176 AD3d 120, 127 [2d Dept 2019] [emphasis added].)

Where, as in this case, a plaintiff's claims are dismissed more than once, it is important to clarify whether the first{**87 Misc 3d at 368} condition enunciated in Sokoloff refers to the timeliness of the original action or the most recent dismissed action—in other words, if successive recommencements under CPLR 205 (a) are permitted, as long as the first action was timely. This question has not been resolved by any state appellate authority.

However, in a diversity jurisdiction case applying New York law, the Second Circuit Court of Appeals reached this exact issue. In that case's relevant procedural history, the plaintiff had filed a timely action asserting fraudulent conveyance in 2014, which was dismissed for pleading defects. Within six months of that dismissal, the plaintiff recommenced a second action in 2018, as permitted under CPLR 205 (a), but the second action was again dismissed for failure to sufficiently plead a cause of action. The plaintiff attempted to bring her claims a third time in 2020, within six months of the second dismissal. The federal court held that the plaintiff's claims were now time-barred based on the commencement date of the second action. The Second Circuit affirmed that the statute "does not permit a litigant to file an otherwise untimely 'new action' within six months of a 'prior action,' where that prior action was, itself, only made timely [*3]by a previous application of section 205(a)" (Ray v Ray, 22 F4th 69, 75 [2d Cir 2021]). The alternative would allow new actions to be filed "in perpetuity" based on the original filing date after multiple dismissals (id. at 73). As other trial courts have held, before and after that ruling, the six-month extension is intended to allow one "full bite of the apple" only, not a chain of recommencements (Tecocoatzi-Ortiz v Just Salad 600 Third LLC, 2023 NY Slip Op 30512[U], *7 [Sup Ct, NY County 2023]; Goldberg v Littauer Hosp. Assn., 160 Misc 2d 571, 574 n 2 [Sup Ct, Albany County 1994]).

This court agrees with the federal circuit's interpretation of the statute and finds it consistent with the "unyielding conditions" in Sokoloff and the plain meaning of CPLR 205 (a). A revived action under CPLR 205 (a) must be commenced and served within six months of an action that was itself timely, not one that was only made timely by a prior application of CPLR 205 (a).

In this case, only the wrongful death claim would have been timely when this second action was commenced on February 13, 2025. The two-year statute of limitations period for wrongful death did not expire until February 16, 2025. In contrast, the statute of limitations period for the medical malpractice and/or negligence claims expired on May 14, 2024, one year{**87 Misc 3d at 369} and 90 days from the last date of treatment and before the second action was commenced. As such, CPLR 205 (a) is inapplicable to plaintiff to proceed with any medical malpractice or negligence claims in a third or subsequent action. Thus, the dismissal of this action is without prejudice to further recommencement under CPLR 205 (a) with respect to the wrongful death claim only; the medical malpractice/negligence claims are dismissed with prejudice.

Accordingly, it is hereby ordered that defendants' motion (seq No. 1) to dismiss the entire action pursuant to CPLR 3211 (a) (3) for lack of legal capacity is granted; and it is further ordered that the dismissal of the wrongful death claim is without prejudice and entitled to recommencement pursuant to CPLR 205 (a); and it is further ordered that all claims sounding in medical malpractice and/or negligence are dismissed with prejudice.

The Clerk is directed to enter judgment in favor of New York City Health and Hospitals Corporation, sued herein as The New York City Health & Hospitals Corporation and Kings County Hospital Center.