Partner Karen B. Corbett obtained a dismissal in a Queens County Supreme Court pressure ulcer case that was commenced on behalf of a 76 year old immobile female resident with Alzheimer’s dementia who was admitted to our client's nursing home between November 21, 2012 – December 28, 2016. The resident did not develop any skin breakdown until April of 2016 - 9 months prior to her death. The case was commenced by the resident's son as the Executor of her estate, and he alleged that our client’s facility failed to properly assess the decedent as being at risk for pressure ulcers, that they did not provide her with interventions that would have prevented her from developing pressure ulcers and they claim that once she developed the pressure ulcers at issue, they were not timely assessed and treated. The action was started in 2018, and several years into the litigation, it was learned that the Letters Testamentary were not issued until May 20, 2020. Upon the conclusion of discovery, we made a motion to dismiss on two grounds: initially, we moved to dismiss based on lack of capacity and statute of limitations; and we alternatively moved for summary judgment.
The Court’s November 14, 2023 decision granted our motion pursuant to CPLR 3211(a)(5) and dismissed the case as she found the action was time barred. The salient facts considered on the motion were that the decedent died in 2016. Plaintiff commenced the case in 2018 as executor of his mother’s estate –when in fact, he had not been appointed as executor at that time. The Court found that the date on the Letters Testamentary alone made out our prima facie case that the plaintiff did not have standing to commence the suit when the action was started. The statute of limitations on the wrongful death claim expired on December 29, 2018 - on the two year anniversary of the resident's death and the statute of limitations on the nursing home negligence claims expired 3 years after the last date of her residency – or on December 29, 2019. Since the Letters Testamentary were not issued until May 20, 2020, the Court determined that the purported executor did not have standing to bring the action prior to the issuance of Letters Testamentary in 2020; and, by the time he had standing, the statute of limitations had run out on all his claims.
Importantly, plaintiff argued that the Court should not dismiss the case pursuant to statute of limitations grounds since plaintiff could merely refile the action and they contend that would be timely in accord with CPLR 205(a) - NY’s savings statute (which would give them 60 days to correct the fatal defect and refile the action). The Court found this argument premature since the action had not been dismissed and plaintiff had not made a cross motion for leave to refile the action. The decision also held that since plaintiff did not rebut the showing that the plaintiff did not have capacity to bring this case until after the statutes of limitations expired on all the claims asserted, dismissal was warranted in any event. The Court never got to the merits of the second prong of the motion seeking summary judgment as they determined that was moot in light of the statute of limitations dismissal.