Goltsman Obtains Dismissal of Nursing Home Lawsuit
Clausen Miller partner Mara Goltsman of our New York office has obtained dismissal of a nursing home lawsuit based on procedural grounds.
When the Complaint was first filed, plaintiff was named as the Proposed Administratrix of the decedent’s Estate. Defendants moved to dismiss the Complaint based on plaintiff’s lack of capacity to sue because she was not duly appointed as the Administratrix. The Court granted the motions without prejudice and allowed plaintiff to commence a new action under CPLR 205. Plaintiff did so, one day before her time expired under that statute (she was allowed to re-file within 6 months of the dismissal). However, she was still not appointed as the Administratrix. The Surrogate’s Court signed Temporary Letters of Administration after plaintiff filed the second action.
We argued that plaintiff lacked capacity to commence the second action and that the statute of limitations for all causes of action asserted in the Complaint (medical malpractice, negligence and wrongful death) expired.
The Court issued a decision stating that the Complaint is dismissed with prejudice in its entirety.
Mara Goltsman