Alexis v Perciavalle

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[*1] Alexis v Perciavalle 2007 NY Slip Op 51295(U) [16 Misc 3d 1105(A)] Decided on June 28, 2007 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2007
Supreme Court, Dutchess County

William Alexis, as proposed Administrator of the Estate of Robert J. Alexis, Deceased, Plaintiff,

against

Deborah Perciavalle and Mario J. Perciavalle, Defendants.



0695/07



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:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Souto...................1-3

Exhibits............................A-C

2.Affirmation in Opposition-Adams..........1-2

Exhibit.............................1

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 28, 2007

ENTER

Hon. James D. Pagones, A.J.S.C.

TO:

062707 decision&order