Alexis v PerciavalleAnnotate this Case
Decided on June 28, 2007
Supreme Court, Dutchess County
William Alexis, as proposed Administrator of the Estate of Robert J. Alexis, Deceased, Plaintiff,
Deborah Perciavalle and Mario J. Perciavalle, Defendants.
ADAMS LAW FIRM
Attorneys for Plaintiff
254 South Main Street, Suite 404
New City, New York 10956
EDWARD P. SOUTO, ESQ.
GROGAN & SOUTO, P.C.
Attorneys for Defendants Court Plaza, P.O. Box 330
Goshen, New York 10924
RUDOLPH P. RUSSO, ESQ.
Attorney for the Estate
of ROBERT J. ALEXIS
35 Market Street
Poughkeepsie, New York 12601
RICHARD P. ALEXIS
Executor of the Estate of
ROBERT J. ALEXIS
121 South Greenhaven Road
Stormville, New York 12582
James D. Pagones, J.
The defendants move to dismiss the plaintiff's complaint on the grounds that the plaintiff does not have the legal capacity to sue.
The decedent, Robert J. Alexis, died testate on February 6, 2005 from injuries sustained in a motor vehicle accident which occurred on that date. A review of the records of the Dutchess County Surrogate's Court reveals that the decedent's will was admitted to probate on March 29, 2005 and that letters testamentary were issued to Richard P. Alexis on that date.
On February 6, 2007, William J. Alexis commenced a wrongful death action against Deborah and Mario Perciavalle. The plaintiff instituted this action under the title of "Proposed Administrator of the Estate of Robert J. Alexis." The plaintiff's complaint does not allege the basis for his capacity to sue or his status with regard to the existing estate proceeding pending in surrogate's court.
EPTL §5-4.1(1) permits the personal representative of a decedent who is survived by distributees to maintain an action to recover damages for a wrongful act which caused the decedent's death. Such an action must be commenced by the duly appointed representative within two years after the decedent's death.
The plaintiff commenced the instant wrongful death action on February 6, 2007, exactly two years after the date of death. While the action was timely brought within the limitations period, the duly appointed executor, Richard P. Alexis did not institute the action. These allegations are uncontroverted and the court is compelled to dismiss the plaintiff's complaint pursuant to CPLR §3211(a)(3). (Mingone v. State of New York, 100 AD2d 897, 899 [2d Dept. 1984].) Therefore, it is ordered that the defendants' motion is granted and the plaintiff's complaint is dismissed pursuant to CPLR §3211(a)(3).
CPLR §205(a) provides:
"If an action is timely commenced and is terminated in any other manner than by a [*2]voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff...may commence a new action upon the same transaction or a occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon the defendant is effected within such six-month period."
The record before this Court is not fully developed as to why Richard P. Alexis, the duly appointed executor of the Estate of Robert J. Alexis, did not timely institute a wrongful death action as part of his fiduciary responsibility. In the event that the executor declines to timely institute a wrongful death action, then the distributees may move for the appointment of an administrator to bring the action on their behalf.
The Court read and considered the following documents upon this application:
1.Notice of Motion.........................1-2
2.Affirmation in Opposition-Adams..........1-2
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
June 28, 2007
Hon. James D. Pagones, A.J.S.C.