Summary
In Seidensticker v. Huntington Hosp. (194 A.D.2d 718, 719-720), this court found that delivery of the summons and complaint to the Sheriff pursuant to CPLR 203(b)(5) prior to issuance of letters of administration constituted commencement of the action for statute of limitations purposes.
Summary of this case from Burwell v. Yonkers Gen. HospOpinion
June 21, 1993
Appeal from the Supreme Court, Suffolk County (Jones, J.).
Ordered that the order is modified, on the law, by adding a provision thereto directing the plaintiff to serve a certificate of merit pursuant to CPLR 3012-a and to file a notice of medical malpractice action pursuant to CPLR 3406 (a); as so modified, the order is affirmed without costs or disbursements. The plaintiff's time to serve and file the required affidavit and notice is extended until 30 days after service upon her of a copy of this decision and order, with notice of entry.
The plaintiff's decedent allegedly came under the care and treatment of the defendant hospital commencing on or about August 27, 1988. It is further alleged that during the time of his hospital stay, the decedent was forced to walk to the lavatory on his own, despite having made several urgent requests to the defendant's personnel for assistance. The decedent slipped on his way to the lavatory, fell and sustained serious personal injuries which allegedly caused his death on September 13, 1988.
In or about April 1990, the plaintiff, who is one of the decedent's surviving daughters, filed a petition with the Suffolk County Surrogate's Court seeking the issuance of letters of administration in order to bring the instant action. On August 31, 1990, while the petition before the Surrogate was still pending, and prior to the expiration of the two-year Statute of Limitations (see, EPTL 5-4.1), the plaintiff delivered a copy of the summons and complaint to the Suffolk County Sheriff in accordance with CPLR 203 (b) (5). The Surrogate issued letters of administration to the plaintiff on September 19, 1990, and thereafter, additional copies of the same summons and complaint were personally served upon the defendant.
The defendant sought dismissal of the wrongful death claim on the ground that the plaintiff lacked capacity to bring the action at the time the summons and complaint were delivered to the Sheriff. Since the plaintiff did not receive letters of administration until after the two-year limitation period had run, the defendant contends that the action was not commenced timely and its motion to dismiss should have been granted. We disagree.
The effect of the delivery of the summons and complaint to the Sheriff, which was followed by service upon the defendant within the 60-day period specified by the statute (see, CPLR 203 [b] [5]) is that the claim must be deemed interposed, and therefore the action commenced for timeliness purposes, within the applicable Statute of Limitations period (see, Berkshire Life Ins. Co. v. Fernandez, 71 N.Y.2d 874, 876; Matter of Long Is. Citizens Campaign v. County of Nassau, 165 A.D.2d 52, 55). Although the plaintiff lacked the capacity to sue at the time of the initial delivery to the Sheriff, the action was nonetheless commenced and cannot be considered a nullity (see, Carrick v Central Gen. Hosp., 51 N.Y.2d 242). Moreover, the defect in the plaintiff's capacity was cured by the time the subsequent service was made. Under the circumstances, the motion to dismiss based on her purported lack of capacity was properly denied (see, Snay v. Cohoes Mem. Hosp., 110 A.D.2d 1021, 1023; compare, Bernardez v. City of New York, 100 A.D.2d 798).
However, we agree with the defendant's contention that the allegations recited in the complaint, and the bill of particulars, state claims sounding in medical malpractice (see, Bleiler v. Bodnar, 65 N.Y.2d 65; Raus v. White Plains Hosp., 156 A.D.2d 354; Fox v. White Plains Med. Ctr., 125 A.D.2d 538). Under the circumstances, the court should have required the plaintiff to serve an affidavit of merit as required under CPLR 3012-a and further, to file a notice of medical malpractice claim as required under CPLR 3406 (a) (see, Rice v. Vandenebossche, 185 A.D.2d 336). Mangano, P.J., O'Brien, Ritter and Pizzuto, JJ., concur.