Recitation, as required by CPLR §2219 [a], of the papers considered in the review:

Defendants Brookdale Hospital Medical Center, Volodymyr Vulkanov, M.D., Larissa Mararenko, M.D., and Ramaswami P. Sundar, M.D., move (Seq. No. 2) for an Order, pursuant to CPLR 3211 (a) (5), dismissing this action as untimely, contending that CPLR 205 (a) is not applicable to extend the statute of limitations, and in the alternative, move to extend their time to file an answer. Plaintiff opposes the motion.

The underlying claims in this action are for medical malpractice, negligence, and wrongful death, in connection to medical treatment and care rendered from February 21, 2016 through Decedent's death on March 6, 2016. Plaintiff alleges that the defendant hospital and individually named physicians failed to timely diagnose and treat Decedent for stroke, aphasia, and blood clots when he was brought to the hospital in police custody, and that these deviations from the standard of care were a proximate cause of his injuries and death.

This is Defendants' second pre-answer motion seeking to dismiss this action. The first motion (Seq. No. 1) was marked off with no appearance by the movants at oral argument on November 20, 2024. Defendants have not yet served an answer.

For procedural background, an action based on the same events and occurrences was commenced by Sheldon Samuel Jr., as administrator of Sheldon Samuel's estate, under Index No. 523273/2017 ("the 2017 action") on December 1, 2017. Sheldon Samuel Jr. had been appointed administrator of the estate by Surrogate's Court at the time the 2017 action was commenced. Defendants appeared in the 2017 action, served an answer, and engaged in discovery.

Subsequently, Sheldon Samuel Jr.'s letters of administration were revoked on February 3, 2021 and reissued to Diamond Morris on the same date. Diamond Morris was never substituted as administrator in the 2017 action. It is well established that "[t]he death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a). Moreover, any determination rendered without such substitution will generally be deemed a nullity." (Vapnersh v Tabak, 131 AD3d 472, 473 [2d Dept 2015] [internal citations and quotation marks omitted].) The same principle applies when the appointed administrator of an estate dies or is no longer authorized to represent the deceased person. The Supreme Court is divested of jurisdiction to act until a new personal representative is appointed and substituted in the action (see Rumola v Maimonides Med. Ctr., 37 AD3d 696, 696-697 [2d Dept 2007]).

The 2017 action was marked disposed on November 29, 2022 for failure to appear at a Final Compliance Part conference. The disposal/dismissal was effective on January 24, 2023, according to a notation on eCourts (see Defendants' Exhibit O). In November 2023, Plaintiff's counsel filed a motion to vacate the dismissal and restore the action to the calendar, and Defendants filed a cross motion to dismiss for failure to timely substitute an administrator of the estate, pursuant to CPLR 1021, and/or for failure to comply with discovery demands, pursuant to CPLR 3126.

In an order dated April 24, 2024, this Court deemed the November 2022 dismissal was a nullity, due to the fact the administrator's letters had been revoked and the action should have been marked Stayed. The Court then granted the cross motion to dismiss, on the basis that the new administrator had not been substituted at the time the motion was heard. While the Court was apprised that letters of administration had been granted to Diamond Morris, a motion to substitute had never been filed in that action and the request to substitute was not before the Court. The dismissal was expressly "without prejudice" and was entered on NYSCEF on April [*2]24, 2024 (see Defendants' Exhibit J). Applying CPLR 205 (a), the six-month period to revive the action by filing and serving a new Complaint ran from April 24, 2024 to October 24, 2024 (see U.S. Bank N.A. v Navarro, 188 AD3d 1282, 1284 [2d Dept 2020]).

Shortly after, Plaintiff moved to vacate the April 24, 2024 order and substitute the new administrator by Order to Show Cause under the 2017 action's index number. Following an appearance before this Court, the undersigned denied that motion in a short form order dated May 15, 2024, and informed the parties that Plaintiff's proper procedure was to recommence the action under a new index number within the time set forth in CPLR 205 (a).

The instant action was commenced on October 11, 2024 by the current administrator of Decedent's estate, Diamond Morris. Affidavits of service were filed thereafter, stating each defendant was served on October 15, 2024.

CPLR 205 (a) provides that:

"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 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. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. (CPLR 205 [a] [emphasis added].)

Generally, "CPLR 205 (a) provides a second opportunity to the claimant who has failed the first time around because of some error pertaining neither to the claimant's willingness to prosecute in a timely fashion nor to the merits of the underlying claim" (Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 200 [2d Dept 2017], quoting George v Mt. Sinai Hosp., 47 NY2d 170 [1979]). It has long been held that the statute's "broad and liberal purpose is not to be frittered away by any narrow construction" (id., quoting Gaines v City of New York, 215 NY 533 [1915]). "The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts" (Gaines, at 533).

The recommencement of this action by administrator Diamond Morris complies with the savings provision of CPLR 205 (a). Although the statute of limitations for medical malpractice and wrongful death has since expired, those claims were timely when the 2017 action was commenced on December 1, 2017. The 2017 action was terminated without prejudice, and the new action was brought within six months of its termination.

The movants make several arguments as to why CPLR 205 (a) should not be applied to this action. First, they argue that Diamond Morris, the current administrator of Decedent's estate, is not the original "plaintiff" of this action.

The statute's grace period applies to any surviving cause of action from the same plaintiff or that plaintiff's "executor or administrator." CPLR 205 (a) routinely allows claims to survive defects or delays in appointing a proper representative (see Carrick v Cent. Gen. Hosp., 51 [*3]NY2d 242, 253 [1980]; Snodgrass v Professional Radiology, 50 AD3d 883, 885 [2d Dept 2008]). By extension, the Second Department has held that the statute applies to a "successor in interest" who is seeking to "enforce the very same right" or claim of the original named plaintiff, e.g., an assignee of the same mortgage (Wells Fargo Bank, N.A., at 202).

Here, the underlying claims pertain entirely to the deceased party, and there are no new claims being asserted by administrator Diamond Morris individually. It would go against the broad purpose of the statute to treat the current administrator as if she were a new plaintiff, rather than a successive representative of the estate. The former administrator is no longer authorized to represent Decedent, and his administrative duties and rights were effectively transferred to her. She is therefore entitled to the benefit of CPLR 205 (a) as a party who "share[s] the same interest, or claim, in this matter" as the original plaintiff in the 2017 action (id., at 202).

Second, the movants argue that the 2017 action should not be deemed "timely commenced" because the original plaintiff-administrator did not have legal capacity to commence an action in the first instance. The administrator named in the 2017 action, Samuel Sheldon Jr., had his letters of administration revoked after the action was commenced. The movants state this revocation was on the grounds that he was a convicted felon, which rendered him ineligible as a fiduciary under the pre-amendment version of SCPA 707 ^[FN1] . Therefore, the movants argue that the original plaintiff always lacked capacity to assert the estate's claims and his "commencement" of that action was never proper.

Contrary to the movants' arguments, the timeliness of the prior action is the important factor in determining whether CPLR 205 (a) permits the new action. There is nothing in the statute stating the prior action must be without defects in capacity or letters of administration. Indeed, a prior action's dismissal for lack of legal capacity under CPLR 3211 (a) (3) is not a barrier or exception to CPLR 205 (a).

The Court of Appeals faced that very issue in Carrick v Central Gen. Hosp. (51 NY2d 242), where the initial action was commenced by a "proposed administrator" without legal capacity to represent the estate. The Court of Appeals held that the personal injury and wrongful death claims could be revived by CPLR 205 (a), noting that "the requirement of a qualified administrator . . . while essential to the maintenance of the suit, is in no way related to the merits of the underlying claim" (Carrick, at 252). Thus, the law is clear that a capacity defect in the original action does not "preclude reprosecution of the underlying claim through the mechanism of CPLR 205 (subd [a]) once a qualified administrator has been appointed" (id.) The Court need not parse the issue of why Sheldon Samuel Jr.'s letters were revoked, whether that decree was retroactive, and whether he "always lacked capacity" to bring the 2017 action. His status as the appointed or proposed administrator is immaterial to the fact that the 2017 action was timely commenced and all defendants had notice of the Complaint and causes of action within the statute of limitations period.

Third, the movants argue that the 2017 was terminated more than six months ago. They state in their moving papers that the action was "dismissed on January 24, 2023" due to [*4]Plaintiff's failure to file a Note of Issue on or before that date. This refers to the administrative disposal of the case that was entered on eCourts on November 29, 2022, reading "Dismissed/Disposed . . . Case is disposed 1/24/2023," after a default in appearance before the Final Conference Part judge.

As discussed in the procedural history above, this Court previously held that the dismissal in November 2022 was a nullity, because the court was divested of jurisdiction at that time. The prior action's termination date must be measured from the April 24, 2024 order dismissing the case without prejudice for failure to substitute, which was entered in NYSCEF less than six months before this action was commenced.

Finally, the movants argue that the 2017 action was dismissed for "neglect to prosecute," and therefore Plaintiff is not entitled to the CPLR 205 (a) savings provision.

CPLR 205 (a) sets forth clearly that "neglect to prosecute" is an exception to the statute, but also "[w]here a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

The Court notes that the substance of the moving papers focused on the dismissal which allegedly occurred in November 2022/January 2023. That administrative disposal was deemed a nullity, and regardless it was not accompanied by any decision or order outlining specific conduct and reasons for the dismissal.

The movants' argument that the final April 2024 termination — based on failure to timely substitute an administrator — was "the equivalent of a dismissal for neglect to prosecute" was raised for the first time in reply. Notwithstanding, although courts have held that failure to timely substitute under CPLR 1021 may fall under the scope of "neglect to prosecute," this is not always the case (compare Rumola v Maimonides Med. Ctr., 88 AD3d 781 [2d Dept 2011]; with Snodgrass, 50 AD3d 883, 884-885). Because "[d]ismissals for neglect to prosecute are to be a serious sanction, not just a bump in the road," the key question is whether the judge "set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation" (Sokoloff v Schor, 176 AD3d 120, 127 [2d Dept 2019]; see also Crudele v Price, 218 AD3d 536 [2d Dept 2023]). Unlike in the Rumola case cited by the movants, which was dismissed "with prejudice" after a seven-year stay, this Court dismissed the 2017 action "without prejudice" and did not set forth any specific conduct and general pattern of delay as described in CPLR 205 (a), as the Court did not deem it applicable. Therefore, this action was not barred from renewal under CPLR 205 (a).

In summary, the prior action was timely commenced on December 1, 2017 and terminated on April 24, 2024, for reasons other than voluntary discontinuance, judgment on the merits, dismissal for failure to obtain personal jurisdiction, or dismissal for neglect to prosecute. Within six months, this action was commenced by the plaintiff-administrator. Service was effected on the defendants before October 24, 2024, in compliance with CPLR 205 (a). Accordingly, the defendants' motion to dismiss the new action is denied.

The part of the motion seeking an extension of time to file an answer is granted without opposition. Defendants shall file their answer within 30 days of the date of this Order.

It is hereby:

ORDERED that the part of Defendants' motion (Seq. No. 2) seeking to dismiss Plaintiff's Complaint pursuant to CPLR 3211 (a) (5) and CPLR 205 (a), is DENIED; and it is [*5]further

ORDERED that Defendants shall file their answer within 30 days of the date of this Order.

This constitutes the decision and order of this Court.