Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029

Goldberg v. Camp Mikan-Recro

42 N.Y.2d 1029 | NY | 1977

Memorandum. Order affirmed. In this case, as distinguished from Vastola v Maer (39 NY2d 1019) and Caffaro v Trayna (35 NY2d 245), the original suit was not brought by one with the capacity to sue for the infant’s personal injuries, the infant then being deceased and no personal representative *1030of his estate having been appointed. Accordingly, when the personal representative was appointed and the "second amended” summons served, both subsequent to the expiration of the Statute of Limitations, there was no pre-existing action to which it could "relate back” (see CPLR 203, subd [e]; Vastola v Maer, supra; Caffaro v Trayna, supra).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.