George v. Mt. Sinai Hospital

• Decision Date: 08 May 1979
• Citation: 47 N.Y.2d 170,417 N.Y.S.2d 231,390 N.E.2d 1156
• Parties: , 390 N.E.2d 1156 Kathleen GEORGE, as Administratrix of the Estate of Katherine David, Deceased, et al., Appellant, v. MT. SINAI HOSPITAL, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 231

417 N.Y.S.2d 231

47 N.Y.2d 170, 390 N.E.2d 1156

Kathleen GEORGE, as Administratrix of the Estate of Katherine David, Deceased, et al., Appellant, v. MT. SINAI HOSPITAL, Respondent.

Court of Appeals of New York.

May 8, 1979.

Martin Gitlin, New York City, for appellant.

Patricia D'Alvia, New York City, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Plaintiff, the administratrix of the estate of Katherine David, seeks to recover damages for personal injuries claimed to have been suffered by the decedent in August of 1972 as a result of defendant's alleged malpractice. At issue on this appeal is the breadth of CPLR 205 (subd. (a)) and the proper application of that statute, if any, to this case. Following the alleged malpractice, decedent retained an attorney for the purpose of instituting an action against defendant. In September of 1973 the summons and complaint in that action were served upon defendant. Katherine David was the named plaintiff in that suit, although, apparently unbeknownst to the attorney, she had died in the interim. The record does not indicate any causal connection between the alleged malpractice and her death, nor has any attempt been made to assert a claim for wrongful death against defendant. What followed could aptly be denominated a comedy of errors were it not for the potentially devastating effect of those events upon what might be a valid claim.

Defendant failed to timely answer, instead sending opposing counsel a series of proposed stipulations to permit late service of an answer. Although none of those proposed stipulations were ever signed by opposing counsel, no attempt was made to enter a default against defendant. When decedent's counsel belatedly did learn of her death, he sent defendant a proposed stipulation substituting as plaintiff the administratrix, the plaintiff in this action. That proposal was made on June 4, 1975, a date which is of some interest if only because the administratrix could then instead have timely commenced a new action in her representative capacity. ¹ As it was, however, the proposed stipulation was not signed by defendant. There followed a period of several months in which it would appear that no relevant action was taken. Finally, in January, 1976 plaintiff sent defendant's counsel a document labeled an "amended summons" which named the administratrix as plaintiff. Some three months later, defendant served an answer, supposedly to the amended summons, and then moved for summary judgment. Defendant contended that the action commenced by the September, 1973 service was a nullity because the named plaintiff was already dead. As to the amended summons sent to defendant's counsel in January, 1976, defendant argued that any action was time barred by that date.

Special Term appears to have accepted the gist of defendant's arguments, but nonetheless denied the motion for summary judgment because defendant had failed to provide proof of the date of decedent's death. Defendant then renewed the motion with proper proof, but the motion was again denied, this time because of some apparent uncertainty as to the various dates of service. The court set the matter down for a hearing on that seemingly elusive question. Instead of continuing that particular struggle, the parties stipulated to a dismissal "without prejudice to plaintiff's right * * * to commence any action pursuant to the authority of Section 205 of the CPLR". Within six months of that date, the administratrix commenced this action based on the same claim. Defendant moved to dismiss on the ground that the action was untimely, but Special Term denied that motion. On appeal, the Appellate Division reversed and granted defendant's motion to dismiss. 62 A.D.2d 950, 404 N.Y.S.2d 16. Plaintiff now appeals to this court as of right (CPLR 5601, subd. (a), par. (ii)). For the reasons discussed below, we conclude that there should be a reversal.

Preliminarily, we must determine whether a prior action that has been improperly brought in the name of a dead plaintiff may nonetheless be a prior action within the ambit of CPLR 205 (subd. (a)). That statute 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, or, if he dies, and the cause of action survives, his 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". ² The effect of the statute is quite simple: if a timely brought action has been terminated for any reason other than one of the three 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. In addition to the listed exceptions, the courts have created one apparent additional exception, holding that if the first action was never properly commenced because of a failure to serve the defendant, the statute is inapplicable (e. g., Erickson v. Macy, 236 N.Y. 412, 140 N.E. 938). Defendant now asks us to create another exception to the statute, and to hold that it is inapplicable if the prior action was dismissed because it was commenced in the name of an improper plaintiff. This we may not do.

Defendant contends that the prior action was a "nullity" rather than an action, and thus there was in fact no prior action. Plaintiff, on the other hand, argues that although the prior action was subject to dismissal because it had not been commenced by a living plaintiff, it was yet an action such that a subsequent action commenced by the proper plaintiff would be protected from the application of the Statute of Limitations by operation of CPLR 205 (subd. (a)).

The question obviously is not an easy one, and its proper resolution is not aided by frequent use of the term "nullity". As is often true, overbroad language serves only to becloud the issues. Simplistic analysis founded on catchwords presumed to have some talismanic significance may lead to speedy resolution of disputes; the appropriateness of resolutions so derived, however, is a function of chance, not reason. Stripped of all circumlocution, defendant's argument is truly circular: defendant would have us hold that since the prior action was properly dismissed, it was a nullity, and thus not an action, and hence no subsequent action may be commenced pursuant to CPLR 205 (subd. (a)). Acceptance of this argument would lead inevitably to the conclusion that the statute is effective only in those few cases in which the prior action should not have been dismissed; in all other cases, having been properly dismissed, for whatever reason, it must be deemed a "nullity". To so read the statute would be to strip it of a major part of its designated role.

Before discussing the nature and breadth of subdivision (a), we note that application of the term "nullity" to an action for personal injuries brought in the name of the decedent rather than in the name of the decedent's personal representative is based on a misunderstanding of the nature of an action which survives the injured party's death, as opposed to an action for wrongful death. The cause of action for wrongful death was originally deemed completely a child of statute, as it had no counterpart in the common law. In contrast to an existing action which survives the injured party's death, a wrongful death action "is not a simple devolution of a cause of action which the deceased would have had * * * but it is an entirely new cause of action" (Whitford v. Panama R. R. Co., 23 N.Y. 465, 470). That this is so is indicated by the nature of the damages recoverable and the persons for whose benefit those damages are sought. A wrongful death action is brought not on behalf of the decedent's estate, but rather on behalf of the decedent's distributees (EPTL 5-4.1), and the damages recoverable are not in compensation for the injury sustained by the decedent, but rather for the injuries suffered by the distributees as a result of the decedent's death (EPTL 5-4.3). Because of the unusual nature of the wrongful death action, the statutory requirements for the maintenance of such an action were originally deemed to be substantive in nature and actual conditions precedent to the commencement of the action (see Sharrow v. Inland Lines, 214 N.Y. 101, 112-113, 108 N.E. 217, 220-221). In accord with this view of the unique nature of the wrongful death action, it was concluded that "the non-appointment of the administrators before bringing the action is not merely a lack of capacity to sue, for that presupposes an existing cause of action, which the plaintiff is incapacitated to maintain. But the due appointment and qualification of the administrators (are) necessary element(s) to the existence of the cause of action" (Boffe v. Consolidated Tel. & Elec. Subway Co., 171 App.Div. 392, 394, 157 N.Y.S. 318, 320 affd. without opn. 226 N.Y. 654, 123 N.E. 856).

Whatever the continuing validity of such considerations in light of the subsequent recognition of the existence of an action for wrongful death in certain areas of the common law (compare Moragne v. States Mar. Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, with Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027) they are of little value with respect to an action which survives the injured party's death. In the latter case, there must a fortiori exist a valid action in favor of the decedent;...