53 A.D.2d 1021 | N.Y. App. Div. | 1976
Order unanimously reversed, with costs, cross motions granted and complaint dismissed, without prejudice, to plaintiff’s institution of a new action in her appointed representative capacity, if so advised. Memorandum: Plaintiff, "as surviving spouse of Angelo J. Mogavero, deceased” ("Mogavero”), timely commenced an action against named defendants ("Stony Creek” and "Decor”), seeking damages for injuries and pain and suffering of Angelo Mogavero and damages to his distributees by reason of his alleged wrongful death. Defendants by their respective answers alleged as a sole affirmative defense the contributory negligence of deceased. Thereafter, a third-party action was commenced by Decor against third-party defendant ("Lodato”). Lodato in its answer to the third-party complaint asserted various affirmative defenses including as an affirmative defense against plaintiff’s complaint and the third-party complaint that the complaint of the plaintiff failed to state a cause of action against the original defendants. Thereafter, plaintiff, pursuant to CPLR 3025 (subd [b]) and CPLR 203 (subd [e]), moved to amend the complaint to reflect her postaction appointment as administratrix of the estate of her deceased husband. Defendants and third-party defendant cross-moved, pursuant to CPLR 3211 (subd [a], par 7), for dismissal of the complaint on the ground that the actions were not brought by the personal representatives of the named deceased and, therefore, failed to state a cause of action. The Statute of Limitations having then run on both the wrongful death action and survival action, disposition of the respective motions entailed critical significance to the parties. Special Term, with understandable motivation, denied the cross motion of the defendants and third-party defendant, and granted plaintiff’s motion to permit amendment of her complaint with further determination that the Statute of Limitations would not constitute a defense to the amended complaint. Such order cannot be sustained. That an action for wrongful death (EPTL 5-4.1) and survival action (EPTL 11-3.2, subd [b]) must be instituted by a duly appointed personal representative (EPTL 11-4.1) cannot be questioned (Winbush v City of Mount Vernon, 306 NY 327, 334-335; Rice v Postal Tel. Cable Co., 174 App Div 39, 40, affd 219 NY 629; Boffe v Consolidated Tel. & El. Subway Co., 171 App Div 392, 394, affd 226 NY 654; Smith v New York Cent. R. R. Co., 183 App Div 478, 479). The need of prior appointment of a legal representative as a requisite component part of the wrongful death action and survival action renders the retroactivity provision under CPLR 203 (subd [e]) to a curative pleading amendment uiider CPLR 3025 (subd Pi]) here inapplicable. However,- CPLR 205 (subd [a]) provides: "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