Preview
FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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JANET KELLY, deceased, by JAMES KELLY, As Index No.: 35912/2020E
proposed Executor of the Estate,
DECISION AND ORDER
Plaintiff, WITH NOTICE OF ENTRY
-against-
SENIORCARE EMERGENCY MEDICAL SERVICES,
Defendant.
----------------------------------------------------------------------X
PLEASE TAKE NOTICE that the within is a true copy of the Order of Honorable
Michael A. Frishman, A.J.S.C, Justice of the Supreme Court, Bronx County, dated February 18,
2022 and entered in the Bronx County Clerk’s office on February 23, 2022.
To the best of my knowledge, information and belief, formed after an inquiry reasonable under
the circumstances, the presentation of this paper or the contentions herein are not frivolous, as
that term is defined in Part 130 of the Court Rules.
Dated: Garden City, New York
February 25, 2022
Yours, etc,
KAUFMAN BORGEEST & RYAN LLP
By:
Betty L. Atlas
Attorneys for Defendant
SENIORCARE EMERGENCY MEDICAL
SERVICES, INC. s/h/aSENIORCARE
EMERGENCY MEDICAL SERVICES
1205 Franklin Avenue – Suite 200
Garden City, New York 11530
(516) 248-6000
7986103
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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/25/2022
TO: Carolyn M. Caccese, Esq.
Salenger, Sack, Kimmel & Bavaro, LLP
Attorneys for Plaintiff
180 Froehlich Farm Boulevard
Woodbury, New York 11797
(516) 677-0100
7986103
2 of 5
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35912/2020E
NYSCEF DOC. NO. 14
BRONX COUNTY CLERK 02/23/2022 12:17 PM| RECEIVEDNO.NYSCEF: 02/25/2022
INDEX
FILED :
RECEIVED NYSCEF: 02/23/2022
NYSCEF DOC. NO. 13
NEW YORK SUPREME COURT - COUNTY OF BRONX
SUPREME COURT OF THE STATR OF NEW YORK
COUNTY OF BRONX: PART 34
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JANET KELLY, deceased, by JAMES KELLY, As Index N9. 35912/2020E
Proposed Executory of the Estate,
Hon. MICHAEL A. FRISHMAN
Plaintiff, Acting Justice of the Supreme Court
- against -
SENIORCASE EMERGENCY MEDICAL SERVICES,
Defendant.
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The following papers numbered 3 to 12 were read on these motions (Seq. No. 1) for DISMISS
noticed on July 8, 2021 and duly submitted as Nos. on the Motion Calendar of
Sequence No. NYSCEF Doc. Nos.
Notice of Motion -Exhibits and Affidavits Annexed 3-6
Opposition -Exhibits and Affidavits Annexed 9-11
Reply Affidavit 12
The instant motion is decided in accordance with the annexed memorandum decision.
Dated: Ê Ó IIon.
MICHAEL A. FRISHMAN , A.J.S.C.
__... ........._____... . ._____.__.. ....__.___..... ..___________.._........__ ..,.___ _____......________.... ..... . . ........
1. CHECK ONE......... .., ..................................- X CASE DISPOSED IN ITS ENTlRETY O CASE STILL ACTIVE
2. MOTION IS...................., ............................. X GRANTED O DENIED O GRANTED IN PART O OTHER
3. CHECK IF APPROPRIATE.......,,,.,.. ........... O SETTLE ORDER O SUBMIT ORDER
__
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NYSCEF DOC. NO. 14 CLERK 12: 17 RECEIVEDNO.NYSCEF: 02/25/2022
INDEX
FILED BRONX
: COUNTY 02 / 23/ 2022. PM)
RECEIVED NYSCEF: 02/23/2022
NYSCEF DOC. NO. 13
SUPREME COURT OF TIIE STATE OF NEW YORK
COUNTY OF BRONX
--------------------------------------------------X
JANET KELLY, deceased, by JAMES KELLY, As
Proposed Executory of the Estate, DECISION and ORDER
Plaintiff, Index No. 35912/2020E
- against -
SENIORCASE EMERGENCY MEDICAL
SERVICES,
Defendants.
-------..--------------------·-------..-------X
HON. MICHAEL A. FRISHMAN
Upon the forgoing papers, with opposition submitted hereto, defendants SENIORCARE
EMERGENCY MEDICAL SERVICES, INC. s/h/a, SENIORCARE EMERGENCY MEDICAL
("Seniorcare"
SERVICES or "defendant") move by motion pursuant to CPLR §3211(a)(3), to dismiss
the complaint of plaintiff JAMES KELLY ("plaintiff"), the purported adrninistrator of the estate of
JANET KELLY ("decedent").
Defendant seeks dismissal of the complaint in its entirety based on plaintiff's lack of capacity
to sue. Defendant's motion and cross-motion are made on the ground that the named plaintiff,
Executor,"
JAMES KELLY, lacks the authority to act, as they are the "Proposed and have not yet
been appointed as the legal representative of the Estate of the decedent, Janet Kelly, by the Surrogate's
Court.
In their opposition, plaintiff provides two Affirmations of Urgency filed with the Surrogate's
Court on or about February 19, 2021 and July 1, 2021. Additionally, plaintiff provides e-mails to the
Surrogate's Court requesting the pending application by James Kelly, son of decadent, be issued and
noting the Affirmations of Urgency that have been filed the pending matter. Plaintiff concedes that,
while they have filed for Letters of Administration, the Letters have yet to be issued. However, to
date there has been no update on the issuance of Letters of Administration.
1
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FILED
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BRONX COUNTY CLERK 02 /23/2022 12 : 17 PM| RECEIVED NYSCEF: 02/25/2022
RECEIVED NYSCEF: 02/23/2022
NYSCEF DOC. NO. 13
CPLR §3211(a)(3) provides that a party may move for judgment dismissing one or more
causes of action asserted against it on the ground that the party asserting the cause of action does not
have the legal capacity to sue.
In this action, plaintiff's Letters of Administration are still pending. That such authority may
be conferred in the immediate future does not change the fact that this action was conuuonoed in the
absence of such authority. "It is well established that the existence of a qualified administrator is
essential to the maintenance of the action and that the statutory right to recover for wrongful death
does not even arise until an administrator has been named through the issuance of letters of
administration"
(Carrickv Central Gen. Hosp., 51 NY2d 242, 250 n 2 [1980] [citations omitted]). In
the absence of existing letters of administration, plaintiff lacks capacity to commence this action (see
Rodriguez v River Valley Care Ctr., Inc., 175 AD3d 432 [1st Dept 2019]). However, plaintiff is not
without in CPLR §205(a) dismissal (see Carmenate v City of New York, 59
remedy following e.g
AD3d 162 [1st Dept 2009]).
Accordingly, it is
ORDERED that Motion Sequence No. 1, is granted, and it is further
ORDERED that the complaint is dismissed without prejudice to recommence upon the
appointment of.an Estate representative in accordance with CPLR §205(a), and it is further
ORDERED that the Clerk is directed to enter judgment dismissing this action. It is further
ORDERED that Seniorcare shall serve a copy of this Order with Notice of Entry within thirty
(30) days of entry of this Order.
The forgoing constitutes the Decision and Order of the Court.
E N T E R
-
Dated:
2
Michael A. Ffishman, A1S.C.
2
3 of 3
5 of 5
Preview
FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X JANET KELLY, deceased, by JAMES KELLY, As Index No.: 35912/2020E proposed Executor of the Estate, DECISION AND ORDER Plaintiff, WITH NOTICE OF ENTRY -against- SENIORCARE EMERGENCY MEDICAL SERVICES, Defendant. ----------------------------------------------------------------------X PLEASE TAKE NOTICE that the within is a true copy of the Order of Honorable Michael A. Frishman, A.J.S.C, Justice of the Supreme Court, Bronx County, dated February 18, 2022 and entered in the Bronx County Clerk’s office on February 23, 2022. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: Garden City, New York February 25, 2022 Yours, etc, KAUFMAN BORGEEST & RYAN LLP By: Betty L. Atlas Attorneys for Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC. s/h/aSENIORCARE EMERGENCY MEDICAL SERVICES 1205 Franklin Avenue – Suite 200 Garden City, New York 11530 (516) 248-6000 7986103 1 of 5 FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/25/2022 TO: Carolyn M. Caccese, Esq. Salenger, Sack, Kimmel & Bavaro, LLP Attorneys for Plaintiff 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 7986103 2 of 5 FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E 35912/2020E NYSCEF DOC. NO. 14 BRONX COUNTY CLERK 02/23/2022 12:17 PM| RECEIVEDNO.NYSCEF: 02/25/2022 INDEX FILED : RECEIVED NYSCEF: 02/23/2022 NYSCEF DOC. NO. 13 NEW YORK SUPREME COURT - COUNTY OF BRONX SUPREME COURT OF THE STATR OF NEW YORK COUNTY OF BRONX: PART 34 ----------------------------------------------------------------X JANET KELLY, deceased, by JAMES KELLY, As Index N9. 35912/2020E Proposed Executory of the Estate, Hon. MICHAEL A. FRISHMAN Plaintiff, Acting Justice of the Supreme Court - against - SENIORCASE EMERGENCY MEDICAL SERVICES, Defendant. ----------------------------------------------------------------X The following papers numbered 3 to 12 were read on these motions (Seq. No. 1) for DISMISS noticed on July 8, 2021 and duly submitted as Nos. on the Motion Calendar of Sequence No. NYSCEF Doc. Nos. Notice of Motion -Exhibits and Affidavits Annexed 3-6 Opposition -Exhibits and Affidavits Annexed 9-11 Reply Affidavit 12 The instant motion is decided in accordance with the annexed memorandum decision. Dated: Ê Ó IIon. MICHAEL A. FRISHMAN , A.J.S.C. __... ........._____... . ._____.__.. ....__.___..... ..___________.._........__ ..,.___ _____......________.... ..... . . ........ 1. CHECK ONE......... .., ..................................- X CASE DISPOSED IN ITS ENTlRETY O CASE STILL ACTIVE 2. MOTION IS...................., ............................. X GRANTED O DENIED O GRANTED IN PART O OTHER 3. CHECK IF APPROPRIATE.......,,,.,.. ........... O SETTLE ORDER O SUBMIT ORDER __ 1 of 3 3 of 5 FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E 35912/2020E NYSCEF DOC. NO. 14 CLERK 12: 17 RECEIVEDNO.NYSCEF: 02/25/2022 INDEX FILED BRONX : COUNTY 02 / 23/ 2022. PM) RECEIVED NYSCEF: 02/23/2022 NYSCEF DOC. NO. 13 SUPREME COURT OF TIIE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------X JANET KELLY, deceased, by JAMES KELLY, As Proposed Executory of the Estate, DECISION and ORDER Plaintiff, Index No. 35912/2020E - against - SENIORCASE EMERGENCY MEDICAL SERVICES, Defendants. -------..--------------------·-------..-------X HON. MICHAEL A. FRISHMAN Upon the forgoing papers, with opposition submitted hereto, defendants SENIORCARE EMERGENCY MEDICAL SERVICES, INC. s/h/a, SENIORCARE EMERGENCY MEDICAL ("Seniorcare" SERVICES or "defendant") move by motion pursuant to CPLR §3211(a)(3), to dismiss the complaint of plaintiff JAMES KELLY ("plaintiff"), the purported adrninistrator of the estate of JANET KELLY ("decedent"). Defendant seeks dismissal of the complaint in its entirety based on plaintiff's lack of capacity to sue. Defendant's motion and cross-motion are made on the ground that the named plaintiff, Executor," JAMES KELLY, lacks the authority to act, as they are the "Proposed and have not yet been appointed as the legal representative of the Estate of the decedent, Janet Kelly, by the Surrogate's Court. In their opposition, plaintiff provides two Affirmations of Urgency filed with the Surrogate's Court on or about February 19, 2021 and July 1, 2021. Additionally, plaintiff provides e-mails to the Surrogate's Court requesting the pending application by James Kelly, son of decadent, be issued and noting the Affirmations of Urgency that have been filed the pending matter. Plaintiff concedes that, while they have filed for Letters of Administration, the Letters have yet to be issued. However, to date there has been no update on the issuance of Letters of Administration. 1 2 of 3 4 of 5 FILED: BRONX COUNTY CLERK 02/25/2022 10:11 AM INDEX NO. 35912/2020E INDEX NO. 35912 / 202 0E NYSCEF DOC. :NO. FILED 14 BRONX COUNTY CLERK 02 /23/2022 12 : 17 PM| RECEIVED NYSCEF: 02/25/2022 RECEIVED NYSCEF: 02/23/2022 NYSCEF DOC. NO. 13 CPLR §3211(a)(3) provides that a party may move for judgment dismissing one or more causes of action asserted against it on the ground that the party asserting the cause of action does not have the legal capacity to sue. In this action, plaintiff's Letters of Administration are still pending. That such authority may be conferred in the immediate future does not change the fact that this action was conuuonoed in the absence of such authority. "It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration" (Carrickv Central Gen. Hosp., 51 NY2d 242, 250 n 2 [1980] [citations omitted]). In the absence of existing letters of administration, plaintiff lacks capacity to commence this action (see Rodriguez v River Valley Care Ctr., Inc., 175 AD3d 432 [1st Dept 2019]). However, plaintiff is not without in CPLR §205(a) dismissal (see Carmenate v City of New York, 59 remedy following e.g AD3d 162 [1st Dept 2009]). Accordingly, it is ORDERED that Motion Sequence No. 1, is granted, and it is further ORDERED that the complaint is dismissed without prejudice to recommence upon the appointment of.an Estate representative in accordance with CPLR §205(a), and it is further ORDERED that the Clerk is directed to enter judgment dismissing this action. It is further ORDERED that Seniorcare shall serve a copy of this Order with Notice of Entry within thirty (30) days of entry of this Order. The forgoing constitutes the Decision and Order of the Court. E N T E R - Dated: 2 Michael A. Ffishman, A1S.C. 2 3 of 3 5 of 5