Bonilla v. Abbott
| Decision Date | 23 September 1985 |
| Citation | 493 N.Y.S.2d 592,113 A.D.2d 861 |
| Parties | Angel BONILLA, etc., Respondent, v. Sydney ABBOTT, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
D'Amato & Lynch, New York City (Andrew R. Simmonds, New York City, of counsel), for appellants.
Speiser & Krause, P.C., New York City (Sally L. Schneider, New York City, of counsel), for respondent.
Before MOLLEN, P.J., and BRACKEN, BROWN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for legal malpractice, defendants appeal from an order of the Supreme Court, Kings County, dated April 17, 1984, which denied defendants' motion to dismiss the complaint.
Order affirmed, with costs.
The two-year period of limitations for wrongful death actions runs from the date of a decedent's death (see EPTL 5-4.1). Since plaintiff was available and qualified to act as the administrator of decedent's estate within the statutory limitations period, defendants should have honored their retainer agreement by timely commencing the wrongful death action. Their failure to do so provides a viable predicate for the instant legal malpractice action.
Contrary to defendants' contention, the disabilities of decedent's infant children may not be invoked to toll the two-year period of limitations. As was noted in Mossip v. Clement & Co., 256 App.Div. 469, 473, 10 N.Y.S.2d 592, affd. 283 N.Y. 554, 27 N.E.2d 279, the right to bring a wrongful death action is not vested in the statutory distributees but is given to the administrator of the decedent for their benefit (see also, Barnette v. Butler Aviation Intl., 89 Misc.2d 350, 391 N.Y.S.2d 348; Beninati v. Oldsmobile Div. of Gen. Motors, 94 Misc.2d 835, 405 N.Y.S.2d 917). Because plaintiff suffered from no disabilities and was eligible and able to act as administrator, the toll for infancy, which is contained in CPLR 208, could not properly be applied to suspend the running of the two-year period of limitations (see, Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027; Cruz v. Mount Sinai Hosp., 61 A.D.2d 915, 402 N.Y.S.2d 842). The fact that the plaintiff was not entitled to share in the proceeds of the estate has no effect upon the applicability of the tolling provisions.
Nor are defendants correct in their assertion that the two-year period did not commence to run until the date plaintiff was appointed guardian of the infant distributees. The remedy for wrongful death is exclusively statutory and is subject to the express terms of EPTL...
To continue reading
Request your trial
-
D'Andrea v. Long Island R. Co.
...runs from the date of the decedent's death, and not from the date of appointment of the personal representative (Bonilla v. Abbott, 113 A.D.2d 861, 493 N.Y.S.2d 592). The task of determining the timeliness of a wrongful death action is complicated where, as in this case, the defendant is th......
-
Cruz v. Korean Air Lines Co., Ltd.
...death action "is given to the administrator of the decedent for the benefit" of the statutory distributees. Bonilla v. Abbott, 113 A.D.2d 861, 493 N.Y.S.2d 592, 593 (2d Dept.1985); accord Fried v. Seippel, 170 A.D.2d 303, 566 N.Y.S.2d 27 (1st Dept.1991), reversed on other grounds, 80 N.Y.2d......
- Winant v. Carefree Pools
-
Barrett v. State
...is available to act as the decedent's representative, a proposition with which we have expressed agreement (see, Bonilla v. Abbott, 113 A.D.2d 861, 493 N.Y.S.2d 592; see also, Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027). It does not provide, as the Court of......