On December 17, 2020 Jon Lichtenstein, Esq. obtained an affirmance of a dismissal of a Public Health Law action against our client nursing home on the grounds that the action was time barred.  The initial dismissal was obtained following a prior dismissal of the case without prejudice.  Plaintiff had initially brought the action timely in the name of the Administratrix of the decedent, despite no such appointment having been made by the Surrogate.  After plaintiff delayed obtaining the Letters we chose to move to dismiss for failing to timely appoint an administratrix instead of moving to dismiss for the Administratrix lacking capacity pursuant to CPLR §1021 which turned out to be a brilliant tactical decision.

The court was sympathetic to the plaintiff and granted the motion without prejudice and invited plaintiff to move to restore the prior dismissal upon obtaining the Letters.  Instead of taking the court up on the offer, plaintiff chose to institute a new action despite the expiration of the statute of limitations, expecting to take advantage of CPLR §205(a), which provide six months’ time to restart an action that had been timely commenced, but later dismissed.  After the action was re-commenced we moved to dismiss again, this time pursuant to CPLR §3211(a)(5) for being untimely.  A different judge granted the motion finding plaintiff could not avail herself of the six-month saving provision of CPLR §205(a) since the prior dismissal was for “failure to prosecute” a statutory exception.

Plaintiff appealed the dismissal to the Appellate Division, First Department, claiming that the dismissal pursuant to CPLR §1021 was not for “failure to prosecute” as that phrase did not appear in the decision, that it was “without prejudice” and so the judge had not intended it to end the case and had in fact, invited plaintiff to move to restore it.  Plaintiff also argued that the initial Judge should not have dismissed the action in the absence of willful or wanton conduct.  Also, in plaintiff’s favor was that the Second Department had recently issued a decision on nearly identical facts, Sokoloff v Schor, 176 A.D.3d 120, 109 N.Y.S.3d 58 (2d Dep’t 2019) which reversed a similar dismissal finding that the lower court did not have capacity to dismiss the case given that the action was improperly instituted in the name of an Administratrix who had not yet been appointed.

We argued to the First Department that an action is dismissed for “failure to prosecute” if it was either literally dismissed for failure to prosecute pursuant to CPLR §3216, or if it was dismissed for failing to do something in a timely manner.   It did not matter if the initial judge had intended to allow plaintiff to refile the action.  The issue was whether the second judge’s dismissal was appropriate.  We argued that plaintiff could not complain about the initial judge’s lack of finding of willful/wanton conduct because plaintiff did not appeal from that decision so the issue was unpreserved.  As for Sokoloff we argued that plaintiff failed to preserve the issue of capacity for review, waived the right to claim lack of capacity, citing United State Supreme Court (SCOTUS”) precedent and to the extent that the Court considered the issue of capacity, Sokoloff, was both distinguishable and wrongly decided since it was internally inconsistent and was contrary to SCOTUS authority.  We argued that Sokoloff was distinguishable because there was no evidence it was instituted with the knowledge and cooperation of the Administratrix unlike the subject case.   We argued it was wrongly decided since lack of capacity can be waived where there is participation in the litigation by the personal representative relying on decisions from both the First and Second Departments and SCOTUS. We also argued that the Sokoloff decision was internally inconsistent since it that cases instituted on behalf of a deceased party is both a nullity but also merely an action subject to dismissal.  Finally, we argued Sokoloff made bad public policy since it rewarded a plaintiff for commencing an action without proper authority.

The First Department’s decision affirmed the dismissal, without mention of Sokoloff preserving the potential for a future showdown between the First and Second Departments on this subject.