Dismissal awarded to New York County Hospital

HPM&B recently obtained dismissal of the plaintiff’s Complaint where plaintiff’s counsel failed to timely substitute an Administrator to represent the Estate of the decedent.

Plaintiff’s counsel had commenced the action with a Proposed Administrator. Pursuant to the case law, a Proposed Administrator does not have capacity to commence a lawsuit.  HPM&B made a motion to dismiss which was granted.  Pursuant to CPLR, the plaintiff had six (6) months from the dismissal of the case to amend the Complaint to name a permanent administrator.  Instead of petitioning the Court to have an Administrator appointed to represent the Estate, plaintiff’s counsel recommenced the action with a “Voluntary Administrator” which did not have capacity to commence a lawsuit.  HPM&B moved to dismiss on lack of capacity grounds because a Court appointed Administrator was not appointed within the six (6) month deadline and because the Statute of Limitations had expired.  Justice Capella of the Supreme Court, Bronx County, granted the motion to dismiss.

HPM&B Partner Vincent L. Gallo, Jr., represented the defendant Hospital.