Preview
FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021
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,
REPLY AFFIRMATION
Plaintiff,
-against-
SENIORCARE EMERGENCY MEDICAL SERVICES,
Defendant.
----------------------------------------------------------------------X
BETTY L ATLAS, an attorney being duly sworn, deposes and states:
1. I am a member of the law firm of Kaufman Borgeest & Ryan, LLP, attorneys for
Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC., s/h/a SENIORCARE
EMERGENCY MEDICAL SERVICES and as such, I am fully familiar with the facts and
circumstances of this action.
2. This affirmation is respectfully submitted in reply to Plaintiff's affirmation in
opposition to Defendant’s motion for an order:
a. Pursuant to CPLR §3211 (a)(3), dismissing Plaintiff's Complaint upon the
grounds that he lacks the legal capacity to commence this action; and
b. Directing the Clerk of the Court to enter judgment accordingly, together
with such other and further relief as the court deems just and proper.
3. As set forth in Defendant's motion, this is an action which was commenced by a
proposed executor of the estate of Janet Kelly, deceased. The decedent Janet Kelly, according to
Plaintiff's affirmation in opposition, died on January 2, 2019, over 2 1/2 years ago.
4. In opposition to Defendant's motion, Plaintiff contends that the motion should be
denied because there has been no substitution for the estate in the Queens County Surrogate
Court despite a pending petition. This lawsuit however, was commenced close to 2 years after
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the death of the Plaintiff and regardless of when Plaintiff filed the petition, capacity to
commence it is a threshold issue. Where a plaintiff does not have capacity, a lawsuit must be
dismissed. Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3rd 74 (2nd Dept. 2007). New
York law clearly establishes that the appointment of a legal representative before the
commencement of the action on behalf of an estate is a mandatory condition precedent to the
maintenance of the action and the statutory right to recover for wrongful death does not even
arise until an executor has been named through the issuance of letters of administration or letters
testamentary. Carrick v. Central General Hospital, 51 NY 2nd 242 (1980; see also Mingone v.
State of New York, 100 A.D.2nd 897 (2nd Dept. 1984). This Court has no discretion to maintain
this action and not dismiss it in its entirety as a cause of action does not arise until someone is in
a position to bring and maintain it-- that is, until the personal representative of the deceased has
been appointed and qualified. As was held in one of the first cases addressing this issue, “it
cannot be said that a cause of action exists, and thus there be also a person in existence capable
of suing…” Boffee, et al. v. The Consolidated Telegraph and Electrical Subway Co., 171 A.D.
392 (1st Dept. 1916).
5. Plaintiff has not been issued letters testamentary and accordingly, has no legal
authority or standing to bring suit. This Court has no discretion to allow the lawsuit to continue
and an affirmation stating that the Plaintiff has a pending application in Surrogate's Court for the
appointment of the executor creates no basis upon which this Court has any discretion to
preclude dismissal of the action.
WHEREFORE Defendant SENIORCARE EMERGENCY MEDICAL SERVICES,
INC. s/h/a SENIORCARE EMERGENCY MEDICAL SERVICES, respectfully requests that the
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Court grant Defendant's motion in its entirety with prejudice, together with such other and
further relief as the Court may deem just and proper.
Dated: Garden City, New York
October 1, 2021
Yours, etc.,
KAUFMAN BORGEEST & RYAN LLP
By:
Betty L. Atlas
Attorneys for Defendant
SENIORCARE EMERGENCY MEDICAL
SERVICES, INC. s/h/a SENIORCARE
EMERGENCY MEDICAL SERVICES
1205 Franklin Avenue – Suite 200
Garden City, New York 11530
(516) 248-6000
TO: Carolyn M. Caccese, Esq.
Salenger, Sack, Kimmel & Bavaro, LLP
Attorneys for Plaintiff
180 Froehlich Farm Boulevard
Woodbury, New York 11797
(516) 677-0100
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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,
CERTIFICATION
Plaintiff, PURSUANT TO RULE 202.8-b
(RULE 17)
-against-
SENIORCARE EMERGENCY MEDICAL SERVICES,
Defendant.
----------------------------------------------------------------------X
BETTY L. ATLAS, an attorney duly admitted to practice law in the Courts of the State of
New York, hereby affirms the following, pursuant to the penalties of perjury:
1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the
Supreme Court and County Court that the total number of words in the foregoing Affirmation,
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, and signature block is 549. The document complies with the word-count limit. I
have relied on the word count of the word-processing system used to prepare the document.
Dated: Garden City, New York
October 1, 2021
Yours, etc.,
KAUFMAN BORGEEST & RYAN LLP
By:
Betty L. Atlas
Attorneys for Defendant
SENIORCARE EMERGENCY MEDICAL
SERVICES, INC. s/h/a SENIORCARE
EMERGENCY MEDICAL SERVICES
1205 Franklin Avenue – Suite 200
Garden City, New York 11530
(516) 248-6000
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TO: Carolyn M. Caccese, Esq.
Salenger, Sack, Kimmel & Bavaro, LLP
Attorneys for Plaintiff
180 Froehlich Farm Boulevard
Woodbury, New York 11797
(516) 677-0100
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Preview
FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021 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, REPLY AFFIRMATION Plaintiff, -against- SENIORCARE EMERGENCY MEDICAL SERVICES, Defendant. ----------------------------------------------------------------------X BETTY L ATLAS, an attorney being duly sworn, deposes and states: 1. I am a member of the law firm of Kaufman Borgeest & Ryan, LLP, attorneys for Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC., s/h/a SENIORCARE EMERGENCY MEDICAL SERVICES and as such, I am fully familiar with the facts and circumstances of this action. 2. This affirmation is respectfully submitted in reply to Plaintiff's affirmation in opposition to Defendant’s motion for an order: a. Pursuant to CPLR §3211 (a)(3), dismissing Plaintiff's Complaint upon the grounds that he lacks the legal capacity to commence this action; and b. Directing the Clerk of the Court to enter judgment accordingly, together with such other and further relief as the court deems just and proper. 3. As set forth in Defendant's motion, this is an action which was commenced by a proposed executor of the estate of Janet Kelly, deceased. The decedent Janet Kelly, according to Plaintiff's affirmation in opposition, died on January 2, 2019, over 2 1/2 years ago. 4. In opposition to Defendant's motion, Plaintiff contends that the motion should be denied because there has been no substitution for the estate in the Queens County Surrogate Court despite a pending petition. This lawsuit however, was commenced close to 2 years after 7639565 1 of 5 FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021 the death of the Plaintiff and regardless of when Plaintiff filed the petition, capacity to commence it is a threshold issue. Where a plaintiff does not have capacity, a lawsuit must be dismissed. Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3rd 74 (2nd Dept. 2007). New York law clearly establishes that the appointment of a legal representative before the commencement of the action on behalf of an estate is a mandatory condition precedent to the maintenance of the action and the statutory right to recover for wrongful death does not even arise until an executor has been named through the issuance of letters of administration or letters testamentary. Carrick v. Central General Hospital, 51 NY 2nd 242 (1980; see also Mingone v. State of New York, 100 A.D.2nd 897 (2nd Dept. 1984). This Court has no discretion to maintain this action and not dismiss it in its entirety as a cause of action does not arise until someone is in a position to bring and maintain it-- that is, until the personal representative of the deceased has been appointed and qualified. As was held in one of the first cases addressing this issue, “it cannot be said that a cause of action exists, and thus there be also a person in existence capable of suing…” Boffee, et al. v. The Consolidated Telegraph and Electrical Subway Co., 171 A.D. 392 (1st Dept. 1916). 5. Plaintiff has not been issued letters testamentary and accordingly, has no legal authority or standing to bring suit. This Court has no discretion to allow the lawsuit to continue and an affirmation stating that the Plaintiff has a pending application in Surrogate's Court for the appointment of the executor creates no basis upon which this Court has any discretion to preclude dismissal of the action. WHEREFORE Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC. s/h/a SENIORCARE EMERGENCY MEDICAL SERVICES, respectfully requests that the 7639565 2 of 5 FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021 Court grant Defendant's motion in its entirety with prejudice, together with such other and further relief as the Court may deem just and proper. Dated: Garden City, New York October 1, 2021 Yours, etc., KAUFMAN BORGEEST & RYAN LLP By: Betty L. Atlas Attorneys for Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC. s/h/a SENIORCARE EMERGENCY MEDICAL SERVICES 1205 Franklin Avenue – Suite 200 Garden City, New York 11530 (516) 248-6000 TO: Carolyn M. Caccese, Esq. Salenger, Sack, Kimmel & Bavaro, LLP Attorneys for Plaintiff 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 7639565 3 of 5 FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021 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, CERTIFICATION Plaintiff, PURSUANT TO RULE 202.8-b (RULE 17) -against- SENIORCARE EMERGENCY MEDICAL SERVICES, Defendant. ----------------------------------------------------------------------X BETTY L. ATLAS, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following, pursuant to the penalties of perjury: 1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the Supreme Court and County Court that the total number of words in the foregoing Affirmation, inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, and signature block is 549. The document complies with the word-count limit. I have relied on the word count of the word-processing system used to prepare the document. Dated: Garden City, New York October 1, 2021 Yours, etc., KAUFMAN BORGEEST & RYAN LLP By: Betty L. Atlas Attorneys for Defendant SENIORCARE EMERGENCY MEDICAL SERVICES, INC. s/h/a SENIORCARE EMERGENCY MEDICAL SERVICES 1205 Franklin Avenue – Suite 200 Garden City, New York 11530 (516) 248-6000 7639565 4 of 5 FILED: BRONX COUNTY CLERK 10/01/2021 12:13 PM INDEX NO. 35912/2020E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/01/2021 TO: Carolyn M. Caccese, Esq. Salenger, Sack, Kimmel & Bavaro, LLP Attorneys for Plaintiff 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 7639565 5 of 5