Carrick v. Central General Hospital

• Citation: 414 N.E.2d 632,434 N.Y.S.2d 130,51 N.Y.2d 242
• Parties: , 414 N.E.2d 632 Clara CARRICK, Individually and as Administratrix of the Estate of William Carrick, Deceased, and as Natural Guardian of His Minor Issue, Appellant, v. CENTRAL GENERAL HOSPITAL et al., Respondents.
• Decision Date: 13 November 1980
• Court: New York Court of Appeals

Page 130

434 N.Y.S.2d 130

51 N.Y.2d 242, 414 N.E.2d 632

Clara CARRICK, Individually and as Administratrix of the Estate of William Carrick, Deceased, and as Natural Guardian of His Minor Issue, Appellant, v. CENTRAL GENERAL HOSPITAL et al., Respondents.

Court of Appeals of New York.

Nov. 13, 1980.

Robert D. Becker and Michael D'Agostino, New York City, for appellant.

Howard S. Davis, New York City and Barry M. Hoffman, New City, for Central General Hospital, respondent.

John H. Nelson, Mineola, for Dr. Ali Koprenska, respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

When an action is dismissed for reasons other than a failure to prosecute or a fatal defect involving the merits of the underlying claim, CPLR 205 (subd. (a)) permits the plaintiff to commence a new action within six months of the dismissal even though the action would otherwise be time-barred under the applicable period of limitations. In this case, we are called upon to consider whether this six-month extension is available to a plaintiff whose wrongful death action has been dismissed solely for want of a duly appointed administrator.

Plaintiff commenced the instant action for damages arising from the personal injuries and wrongful death of her spouse, who died on November 11, 1975, allegedly as a result of the negligent medical treatment he received at the hands of defendants. She served her first summons with notice on October 17, 1977, less than one month before the two-year Statute of Limitations for wrongful death actions would have expired (see EPTL 5-4.1). Since she had not yet been issued letters of administration authorizing her to bring suit on behalf of the decedent's estate and his distributees at the time the action was commenced, however, plaintiff was forced to denominate herself the "proposed administratrix" in the caption on her summons.

Defendants promptly moved for a dismissal of the personal injury and wrongful death causes of action, contending that the absence of a duly appointed administrator was fatal to both claims. Although Special Term initially denied the motions for reasons which need not concern us here, the court ultimately upheld defendants' position and dismissed plaintiff's causes of action on July 17, 1978.

Within two weeks of this dismissal, plaintiff commenced a second action by serving defendants with a summons and complaint. By this time, plaintiff had been issued the necessary letters of administration and was therefore able to characterize herself as "administratrix" in the captions.

Defendants once again moved for dismissal of both claims, this time alleging that the causes of action were barred by the applicable Statute of Limitations (see CPLR 214-a; EPTL 5-4.1). Plaintiff countered the motion by invoking CPLR 205 (subd. (a)), which provides as follows: "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same transaction or occurrence * * * within six months after the termination". Plaintiff took the position that she was entitled to benefit from the extension of the limitations period provided in CPLR 205 (subd. (a)) because she had previously commenced a timely action based upon the same allegations concerning defendants' purportedly negligent conduct.

Special Term agreed and denied the motions to dismiss, concluding that both the personal injury claim and the wrongful death claim were salvageable because of the extension provisions of CPLR 205 (subd. (a)). The Appellate Division, however, held that the wrongful death cause of action should have been dismissed. Although it recognized that the savings provisions of CPLR 205 (subd. (a)) operated to revive the otherwise time-barred "survival" action for the decedent's personal injuries and conscious pain and suffering (see George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 417 N.Y.S.2d 231, 390 N.E.2d 1156), the Appellate Division found that the "unique" characteristics of the wrongful death claim precluded the use of CPLR 205 (subd. (a)) as a means of resurrecting that cause of action. The court reasoned that since the appointment of a qualified administrator is an essential element of the right to bring suit for wrongful death, plaintiff's first action, which was commenced prior to the issuance of letters of administration, was "tantamount to no suit whatsoever" (71 A.D.2d 226, 229, 422 N.Y.S.2d 112). Thus, according to the Appellate Division, plaintiff had not actually commenced a timely wrongful death action within the meaning of CPLR 205 (subd. (a)), and therefore the claim could not be salvaged through the operation of that statute.

Our analysis of the statute and relevant case law, however, leads us to a contrary conclusion. The natural point of departure for our consideration of the present problem lies in our recent decision in George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 417 N.Y.S.2d 231, 390 N.E.2d 1156, supra, wherein we applied CPLR 205 (subd. (a)) to a situation similar to that presented here. In George, the administratrix of an estate commenced a "survival" action seeking damages for the decedent's personal injuries (see EPTL 11-3.2) after an earlier action for the same relief had been dismissed because it mistakenly had been brought in the name of the decedent, who obviously lacked capacity to sue. The question before this court on appeal in George was whether an action improperly brought in the name of a deceased individual constituted a prior "action" entitling the plaintiff to utilize the six-month extension provided in CPLR 205 (subd. (a)). Taking a position similar to that adopted by the Appellate Division in the instant case, the defendant in George urged this court to hold that no timely prior "action" had been commenced for purposes of CPLR 205 (subd. (a)), since the first action brought in the name of a decedent was a "nullity". We squarely rejected this argument, however, observing that resolution of questions involving CPLR 205 (subd. (a)) "is not aided by * * * use of the word 'nullity' " (George v. Mt. Sinai Hosp., supra, at p. 176, 417 N.Y.S.2d 231, 390 N.E.2d 1156). Indeed, we noted that "(t)he statute by its very nature is applicable in those instances in which the prior action was properly dismissed because of some fatal flaw; thus to suggest that it should not be applied simply because there was a deadly defect in the prior action seems nonsensical" (id., at p. 179, 417 N.Y.S.2d 231, 390 N.E.2d 1156).

This point was also stressed in that portion of our opinion in George in which we drew a sharp distinction between the issue in that case and the issue in our earlier decision in Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8. Goldberg involved an unsuccessful attempt by a plaintiff in a wrongful death action, who had brought his suit before being issued letters of administration, to amend his complaint in order to reflect his subsequent appointment as administrator. In seeking to amend his original complaint, the Goldberg plaintiff hoped to avoid the bar of the Statute of Limitations through the use of the "relation-back" provisions of CPLR 203 (subd. (e)) (cf. Caffaro v. Trayna, 35 N.Y.2d 245, 360 N.Y.S.2d 847, 319 N.E.2d 174). ¹ We, however, rejected the attempts of the Goldberg plaintiff to use CPLR 203 (subd. (e)) to cure a "fatal" defect in his original action.

That Goldberg is not dispositive of the issue in the instant case is evident from our analysis of that case in our opinion in George. Although we noted in passing in George that the two cases were distinguishable in that Goldberg involved an action for wrongful death while George involved a "survival" action for personal injuries, the critical and more compelling aspect of our analysis rested in the distinction we drew between the operation of CPLR 203 (subd. (e)), which was at issue in Goldberg, and the operation of CPLR 205 (subd. (a)), which was the source of the controversy in George. In this connection, we observed: "While the relation-back provisions of CPLR 203 are dependent on the existence of a valid pre-existing action, CPLR 205 (subd. (a)) was created to serve in those cases in which the prior action was defective and so had to be dismissed" (George v. Mt. Sinai Hosp., supra, 47 N.Y.2d at pp. 179-180, 417 N.Y.S.2d 231, 390 N.E.2d 1156). In short, the result in George differed from the result in Goldberg not because the former involved a "survival" action and the latter involved an action for wrongful death, but rather because Goldberg involved the application of CPLR 203 (subd. (e)), which contemplates a "valid pre-existing action to which (an) amendment can relate back" (George v. Mt. Sinai Hosp., supra, at p. 179, 417 N.Y.S.2d 231, 390 N.E.2d 1156), while George involved the application of CPLR 205 (subd. (a)), which specifically contemplates a prior defective action subject to dismissal upon timely motion.

Our opinion in George thus stands squarely for the proposition that the extension provisions of CPLR 205 (subd. (a)) are available to a plaintiff who seeks to recommence an action, notwithstanding that the prior action upon which the plaintiff relies was "invalid" in the sense that it contained a fatal defect. Contrary to the view expressed by the Appellate Division in the present case, the fact that the prior action was so defective as to be "tantamount to no suit whatsoever" simply does not preclude the use of that remedial provision to revive an otherwise time-barred cause of action, provided, of course, that a prior timely action, however flawed, actually was "commenced" within the meaning of CPLR 304 (see George v. Mt. Sinai Hosp., supra, at p. 178, 417 N.Y.S.2d 231, 390 N.E.2d 1156; Smalley v. Hutcheon, 296 N.Y. 68, 70 N.E.2d 161; Erickson v. Macy, 236 N.Y. 412, 140 N.E. 938). Although...