Goeller v Nyack Manor Nursing Home

Annotate this Case

Download PDF

Goeller v Nyack Manor Nursing Home 2015 NY Slip Op 32614(U) September 18, 2015 Supreme Court, Rockland County Docket Number: 033161/2014 Judge: Margaret Garvey Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: ROCKLAND COUNTY CLERK 09/21/2015 08:15 AM 1] INDEX NO. 033161/2014 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 09/18/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -----------------------------------------------------------X BRENDA GOELLER, as the Proposed Executrix the Estate of GLORIA MARIE COLARELLI, DECISION of Plaintiff, Index No. 033161/2014 (Motion -against- AND ORDER # 1, 2 and 3) NYACK MANOR NURSING HOME, SYLVESTER ALMIRON, M.D., and NYACK HOSPITAL, Defendants. -----------------------------------------------------------X Margaret Garvey, l.S.C. The following motions complaint filed by three pursuant papers, numbered separate defendants 1 to 7, were considered all seeking to Civil Practice Law and Rules . has no legal capacity the same 9 3211(a)(3) in connection relief - dismissal on the grounds with the of the that Plaintiff to sue: NUMBERED PAPERS MOTION # 1 - DEFENDANT NYACK HOSPITAL NOTICE OF MOTION/AFFIRMATION OF LILI C. OZAROWSKI, MAY 27, 2015 IN SUPPORT/EXHIBITS (A-D) ESQ. DATED 1 MOTION # 2 - DEFENDANT SYLVESTER ALMIRON, M.D. NOTICE OF MOTION/AFFIRMATION OF ROLAND T. KOKE, ESQ. DATED MAY 28, 2015 IN SUPPORT/EXHIBITS (A-D) 2 MOTION # 3 - DEFENDANT NYACK MANOR NURSING HOME NOTICE OF MOTION/AFFIRMATION OF JOHN B. SAVILLE, ESQ. DATED MAY 29, 2015 IN SUPPORT/EXHIBITS (A-D) 3 AFFIRMATION OF VALERIE J. CROWN, ESQ. DATED JULY 17, 2015 IN OPPOSITION/EXHIBITS (A-G) 4 REPLY AFFIRMATION OF ROLAND T. KOKE, ESQ. DATED JULY 20,2015 5 REPLY AFFIRMATION OF JOHN B. SAVILLE, ESQ. DATED JULY 23,2015 6 REPLY AFFIRMATION OF LILI C. OZAROWSKI, ESQ. DATED JULY 23,2015 7 [* 2] Upon the foregoing papers, the Court now rules as follows: This action sounding in wrongful death, medical malpractice, and negligence was commenced by BRENDA GOELLER, as the Proposed Executrix of the Estate of Decedent Gloria Maria Colarelli (died July 2.2., 2.012.) with the filing of the Summons and Verified Complaint through the NYSCEFsystem on July 14, 2.014. One of the allegations of the Verified Complaint is that a "petition is being submitted Letters Testamentary, to the Surrogate Court of the County of Rockland, for in order to appoint BRENDA GOELLER Executrix of the Estate of GLORIA MARIE COLARELLI." (Para. 4 of Verified Complaint). Defendants and Rules move for dismissal of the complaint, to Civil Practice Law 9 32.11(a)(3) (lack of capacity to sue), on the grounds that BRENDA GOELLER has not been issued appropriate decedent. pursuant Letters and is not a proper representative of the Estate of the Defendants note that the petition for Letters before Surrogates Court was not even filed until November 19, 2.014, 12.0 days after the statute of limitations expired on the wrongful death claims and 12.8 days after the complaint was filed. Plaintiff's counsel filed opposition papers offering reasons for the delays in obtaining Letters before Surrogates Court, and also requesting that if the matter is dismissed, that it be dismissed without prejudice to Plaintiff's right to recommence within six months under Civil Practice Law and Rules 9 2.0S(a). In her opposition papers, Plaintiff's counsel repeatedly case, but Defendants' counsel correctly note in their reply affirmations references the Carrick that the Carrick matter was dealing the a dismissal of the subsequent matter brought pursuant to Civil Practice Law and Rules 9 2.0S(a) after the proper dismissal of the initial matter for lack of capacity. 2 [Carrick v. [* 3] Central Gen. Hasp., 51 N.Y.2d 242 (1980)]. In her opposition papers, Plaintiff's counsel also states that once Letters are obtained, she intends to request that counsel for the three defendants stipulate to amend the caption so this lawsuit can proceed, instead of her having to recommence a new lawsuit under Civil Practice Law and Rules 9 205(a). counsel e-filed a letter and attachments Administration and Letters of limited However, on July 23, 2015,' containing at 5:22 p.m., Plaintiff's a July 22, 2015 Decree Granting Administration appointing Brenda Limited Goeller as a representative of the Estate of Gloria Marie Colarelli. To date, the Court has heard nothing from Plaintiff's counsel regarding any resolution between counsel on the issues raised in the motions in light of the fact that Limited Letters were issued July 22, 2015. Therefore, in light of the fact that Brenda Goeller was not the proper representative at the time the action was commenced, or time the motion was filed, or even the time the opposition papers were filed, the Court is constrained to grant the motions to dismiss the matter without recommence under Civil Practice Law and Rules Accordingly, ORDERED 9 205(a). it is hereby that Notice of Motion filed by Defendant granted and the matter is dismissed as against said defendant; ORDERED prejudice to Plaintiff's right to NYACK HOSPITAL (#1) is and it is further that the Notice of Motion filed by Defendant SYLVESTER ALMIRON, M.D. (#2) is granted and the matter is dismissed as against said defendant; and it is further The three dismissal motions were all returnable Friday, July 24, 2015, so opposition papers by Plaintiff were due on or before July 17,2015. Plaintiff's affirmation in opposition and attached exhibits were timely filed by July 17,2015, but the letter containing the Letters from Surrogates Court were not e-filed until after 5:00 p.m. on July 23, 2015. 1 3 [* 4] ORDERED that the Notice of Motion filed by Defendant HOME (#3) is granted and the matter is dismissed ORDERED that this matter The foregoing constitutes as against NYACK MANOR NURSING said defendant; is marked disposed and all future and it is further dates are vacated. the Decision and Order of this Court on Motion #'s 1, 2 and 3. Dated: New City, New York September 18, 2015 MARGARET GARVEY of the Supreme Court TO: VALERIE CROWN, ESQ. Attorneys for Piaintiff (e-filed) LEWIS, JOHS, AVALLONE, AVILES, LLP Attorneys for Defendant NYACK MANOR NURSING HOME (e-filed) RENDE RYAN & DOWNES LLP Attorneys for Defendant SYLVESTER ALMIRON MD (e-filed) WILSON ELSER MOSKOWITZ EDELMAN & DICKER Attorneys for Defendant NYACK HOSPITAL (e-filed) 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.