Hakimian v Grace Plaza Nursing & Rehabilitation Ctr.

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Hakimian v Grace Plaza Nursing & Rehabilitation Ctr. 2016 NY Slip Op 33136(U) May 31, 2016 Supreme Court, Nassau County Docket Number: 604248/15 Judge: Denise L. Sher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NASSAU COUNTY CLERK 06/02/2016 03:48 PM NYSCEF DOC. NO. 42 INDEX NO. 604248/2015 D RECEIVED NYSCEF: 06/02/2016 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice SHANIN HAKIMIAN, as Proposed Administrator of the Estate of GRAFFAR HAKIMIAN, deceased, Plaintiff, - against - TRIAL/IAS PART 3 7 NASSAU COUNTY Index No.: 604248/15 Motion Seq. Nos.: OJ, 03 Motion Dates: 11/12/1-5 11/12/15 GRACE PLAZA NURSING AND REHABILITATION CENTER, PINEGROVE MANOR II INC, WOODMERE REHAB & HEALTH CARE CENTER INC, WOODMERE REHAB & HEALTH CARE CTR INC, NORTH SHORE UNIVERSITY HOSPITAL and FRANKLIN HOSPlT AL, XXX Defendants. The following papers have been read on these motions: Notice of Motion (Seq. No. 01), Affirmation and Exhibits Notice of Motion (Seq. No. 03), Affirmation and Exhibits Papers Numbered 1 2 Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendant Pinegrove Manor 11,.LLC d/b/a Grace Plaza Nursing and Rehabilitation Center s/h/a Grace Plaza Nursing and Rehabilitation Center and Pinegrove Manor II Inc and defendant Woodmere Rehabilitation and Health Care Center Inc. d/b/a Woodmere Rehabilitation and Health Care Center s/h/a Woodmere Rehab & Health Care Center Inc and Woodmere Rehab & Health Care Ctr Inc (hereinafter "defendant Pinegrove" and "defendant Woodmere") move (Seq. No. 01), pursuant to CPLR § 321 l(a)(3), for an order dismissing the Verified Complaint on the 1 of 4 [* 2] grounds that plaintiff lacks the legal capacity to commence this action. No opposition w~s submitted to the motion. Defendants North Shore University Hospital and Franklin Hospital (hereinafter 'I collectively "defendants Hospital") cross-move (Seq. No. 03), pursuant to CPLR § 3211!(a)(3), for an order dismissing plaintiffs action on the grollilds that the party asserting the caus~ of action does not have the necessary legal capacity to sue. No opposition was submitted td the motion. Counsel for defendant Pinegrove and defendant Woodmere submits that, "[p]lai?tiff i commenced this lawsuit by the filing of a Summons and Complaint on or about June 30( 2015 .... '> Plaintiff asserts causes of action for violations of Public Health Law §§2801-d and 2803:-c, Negligence, Gross Negligence and Wrongful Death as against Pinegrove and Woodmer6 Rehabilitation .... According to the case caption, this action was commenced on behalf elf the Estate of Ghaffar Hakimian, deceased by Shanin Hakimian in his purported capacity as : I 'Proposed Administrator' of the decedent's Estate ... : It is asserted in the Complaint thatiShanin ' Hakimian is in the process of being appointed Administrator of the Estate of Ghaffar H1kimian 'l in the Surrogate's Court, Nassau County (emphasis added) .... Since Plaintiff has not been duly . i appointed by the Surrogate's Court as the administrator or executor of the decedent's Estate, as ' ·f reflected in the case caption and the allegations in the Complaint, he lacks standing to commence . and maintain this lawsuit." See. Defendant Pinegrove and Defendant Woodmere's Affin4iation in Support Exhibit A. Counsel for defendant Pinegrove and defendant Woodmere adds that "[t]he Sumlnons and Complaint reveal that Plaintiff commenced this action without first being designate~ as the legal representative of the Estate of the decedent, Ghaffar Hakimian, and as such, is not a proper 1( party to bring the instant action. No Estate has been set up and no Letters of Administration or -2- 2 of 4 [* 3] i ' Letters Testamentary have been issued. Accordingly, any action that Plaintiffs counsel took on behalf of the Estate of Ghaffar Hakimian is null and void inasmuch as Shanin Hakimian Jacks any authority to act. Therefore, the instant action must be dismissed pursuant to CPLR §321 l(a)(3) .... A plaintiff who fails to take the necessary step of securing appointment as the estate representative prior to commencement of the lawsuit lacks the capacity to bring and maintain that lawsuit.. .. EPTL 5-4.1 requires an appointment of a proper estate representative prior to the commencement of an action on behalf of the decedent. Accordingly, designation of a proper estate representative is a condition precedent to bringing a lawsuit on behalf of the decedent's estate .... New York law clearly establishes that the appointment of a legal representative prior to the commencement of an action on behalf of an estate is a mandatory condition precedent." As previously indicated, no opposition was submitted to the motion (Seq. No. OJ)'. In support of the cross-motion (Seq. No. 03), counsel for defendants H_ospital sub1nits, "[t]he Summons and Verified Complaint identifies SHANIN HAKIMIAN, as Proposed Administrator of the Estate of GHAFF AR HAKIMIAN, deceased. There is no indication in the Summons or Complaint, nor was any proof offered by plaintiffs counsel to reflect SHANIN HAKIMIAN was the actual Administrator of the Estate of GHAFF AR HAKIMIAN at the time this suit was commenced on June 30, 2015. Nowhere within plaintiffs Summons and/or Verified Complaint is there any proof of SHANIN HAKIMIAN, actually being named as the administrator of the estate or of her ever receiving Letters of Administration, which would make her a duly appointed personal representative of the estate of the decedent. Accordingly, aiiy action that plaintiffs counsel took on behalf of the Estate of Ghaffar Hakimian is null and void inasmuch as Shanin Hakimian lacks any authority to act. For this reason, the plaintiff does not have the necessary legal capacity to commence this action. Therefore, the instant action must be -3- 3 of 4 [* 4] .I dismissed pursuant to CPLR §321 l(a)(3)." As previously indicated, no opposition was submitted to the cross-motion (Seq. No. 03). CPLR § 321 l(a)(3) states that, "[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 no legal capacity to sue." In the instant matter, it is evident that plaintiff commenced the matter prior to being appointed as administrator of the Estate of Ghaffar Hakimian. Consequently, plaintiff as "Proposed Administrator" lacked the capacity to sue. Therefore, based upon the above, defendant Pinegrove and defendant Woodmere' s motion (Seq. No. 01), pursuant to CPLR § 321 l(a)(3), for an order dismissing the Verified Complaint on the grounds that plaintiff lacks the legal capacity to commence this action is hereby GRANTED. Defendants Hospital's cross-motion (Seq. No. 03), pursuant to CPLR § 321 l(a)(3), for an order dismissing plaintiffs action on the grounds that the party asserting the cause of action does not have the necessary legal capacity to sue is also hereby GRANTED. This constitutes the Decision and Order of this Court. DENISE L. SHER, A.J. XXX Dated: Mineola, New York May 3 I, 2016 ENTERED JUN O2 2016 NASSAU COUNTY COUNTY CLERK'S OFFICE -44 of 4 j

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