The following papers have been read on this motion: Defendants’ Notice of Motion to Dismiss Complaint and Supporting Papers 1 Plaintiff’s Affirmation in Opposition to Motion and Supporting Papers 2 Defendants’ Reply Affirmation 3 DECISION AND ORDER ON MOTION Upon the foregoing papers, the Motion of the defendants, E. AT W. FOR REHABILITATION AND NURSING, LLC d/b/a E. AT W. FOR REHABILITATION AND NURSING ["E. AT W."], A. CORPORATION, A. PARTNERSHIP, [collectively, "defendants"], which seeks an Order pursuant to CPLR §3211(a)(3), dismissing the Complaint of the plaintiff, B.R., as Proposed Administrator of the Estate of B.A.R. ["plaintiff"], on the grounds that the plaintiff lacks the legal capacity to commence this action, is determined as hereinafter follows: The plaintiff commenced this action by filing a Summons and Verified Complaint on April 8, 2022. The plaintiff’s decedent, B.A.R. ["plaintiff's decedent"], died on April 8, 2020. It is alleged in the Verified Complaint that the plaintiff’s decedent died as a result of the defendants’ failure to protect its residents, including the plaintiff’s decedent, from the SARS-COV-2 ["COVID-19"] virus before, during, and throughout the outbreak and pandemic. It is further alleged that the plaintiff’s decedent was infected with and contracted COVID-19 while a resident at E. AT W., that she was never transferred to a hospital, and that she died thereafter as a result of COVID-19, on April 8, 2020. The plaintiff asserts causes of action against the defendants for violations of Public Health Law §§2801-d and 2803-c, Negligence, Negligence per se, Pain and Suffering, and Wrongful Death. Defendant E. AT W. argues that the case must be dismissed pursuant to CPLR §3211(a)(3), which provides, in pertinent part, as follows: “(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:…(3) the party asserting the cause of action has not legal capacity to sue”. (CPLR §3211[a][3]). Movant-defendant E. AT W. argues that in this case, the plaintiff lacked and lacks the legal capacity to bring this action because the plaintiff, B.R. ["plaintiff" or "Revell"], commenced this action without first being designated as the qualified representative of the decedent’s Estate. However, E. requests permission to move to dismiss the plaintiff’s anticipated re-filed Complaint pursuant to CPLR 3211(a)(1) and (a)(7) on the grounds that the plaintiff’s claims relating to acts and decisions resulting from the patient’s COVID-19 treatment and the administration of covered COVID-19 countermeasures triggered immunity from liability pursuant to New York’s Emergency Disaster Treatment Protection Act ["EDTPA"] and the federal Public Readiness and Emergency Preparedness ["PREP"] Act. The plaintiff opposes E.’S motion to dismiss and argues that if the Court dismisses the action, such should be without prejudice so that the plaintiff may re-file in accordance with CPLR 205-a. The Court finds that in this case, the plaintiff lacks the capacity to commence the instant action. EPTL §5-4.1, is relevant to this case, and provides, in pertinent part, as follows: “The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued….” (EPTL 5-4.1). The language of above statute makes clear that an individual must be duly appointed as the estate’s personal representative before that individual may maintain an action on behalf of the decedent. In Carrick v. Cent. Gen. Hosp., 51 NY2d 242, 250 [1980]), the Court of Appeals held that “like most of the other statutory requirements for wrongful death actions, the statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit and, as such, is an essential element of the claim”. (Carrick, 51 NY2d at 250 [citation omitted]; see also, Mingone v. State, 100 AD2d 897, 899 [2d Dept 1984] ["Nevertheless, we conclude that both the personal injury action which survived the death of the decedent and the wrongful death action must be dismissed, as no administrator had been duly appointed to serve as the personal representative of the decedent's estate at the time the summons was served."] As the Court finds that the plaintiff in this case lacks the capacity to commence this action, the portion of the defendants’ motion which seeks dismissal shall be GRANTED. The portion of the plaintiff’s opposition which requests that dismissal be without prejudice is GRANTED, and the instant matter is dismissed without prejudice to the plaintiff’s right to re-file. (CPLR 205-a; Carrick v. Cent. Gen. Hosp., 51 NY2d 242, 252 [1980]). The Court finds that the other matters raised in the parties’ respective motion papers are not properly before this Court and the Court declines to otherwise respond to same. Accordingly, it is hereby: ORDERED, that defendant E. AT W. FOR REHABILITATION AND NURSING, LLC d/b/a E. AT W. FOR REHABILITATION AND NURSING’S Motion to Dismiss the plaintiff’s Complaint pursuant to CPLR §3211(a)(3) is GRANTED, to the extent that the plaintiff’s Complaint is DISMISSED, WITHOUT PREJUDICE, and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED. This constitutes the Decision and Order of this Court. Dated: March 14, 2023
