New York State Court of Claims

New York State Court of Claims

HAYDAMACH v. THE STATE OF NEW YORK, #2006-033-227, Claim No. 111249, Motion No. M-72052


Case Information

TINA V. HAYDAMACH, as Administratrix of the Estate of JOSIAH DANIEL ERICSSON, deceased, and as Mother and Legal Guardian of JOSIAH WILLIAM HAYDAMACH, an infant
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Law Office of Cartier, Bernstein, Auerbach & Dazzo, P.C.By: George T. Ostrowski, Jr., Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for the wrongful death of Josiah Daniel Ericsson (hereinafter “decedent”) due to the alleged medical malpractice of the State of New York (hereinafter “State”). The alleged incident occurred on September 7, 2003, at Stony Brook University Hospital, Stony Brook, New York (hereinafter “Hospital”). The action is brought by Tina V. Haydamach (hereinafter “claimant”) as the Administratrix of the estate of decedent and as the mother and legal guardian of Josiah William Haydamach (hereinafter “infant”).

Decedent was a passenger in a motor vehicle accident on July 9, 2003. He died on September 7, 2003 intestate. The infant is the out of wedlock child of decedent and his sole distributee. Claimant is the mother of the infant and was declared the guardian of the infant by the Suffolk County Surrogate’s Court on January 30, 2004. Claimant also petitioned Surrogate’s Court to be the Administratrix of decedent’s estate for the limited purpose of pursuing a cause of action arising out of the motor vehicle accident (defendant’s Exhibit D). The Letters of Administration were granted to claimant on May 13, 2004. Claimant commenced the instant action against the State by serving and filing the claim on August 3, 2005 and August 12, 2005, respectively.

Defendant moves to dismiss the claim for claimant’s failure to have standing to sue at the time the suit was commenced[1]. Defendant argues that the original Letters of Administration were granted for the limited purpose of prosecuting the action concerning the motor vehicle accident. The statute of limitations for filing the wrongful death action has passed.

In opposition, claimant argues that the Letters of Administration do not refer solely to the motor vehicle accident. In the alternative, claimant argues that Surrogate’s Court granted an order amending the petition to include causes of action for wrongful death based upon medical malpractice against individual doctors and the Hospital. The order was granted June 1, 2006, nunc pro tunc to the date of the original petition. In one more alternative, if the Court grants defendant’s motion, claimant asks for permission to file the claim pursuant to CPLR 205(a).

The problem before the Court concerns the statute of limitations for a wrongful death action where the sole distributee of decedent’s estate is an infant. The further complication is that decedent died intestate.

Court of Claims Act §10(2) states that any cause of action for wrongful death must be served within 90 days of the issuance of the Letters of Administration, unless a notice of intention is filed. However, in any case the claim must be filed within two years of the decedent’s date of death. This two-year statute of limitations mirrors EPTL §5-4.1. The section sets a two-year statute of limitation for a wrongful death action. CPLR 208 tolls a statute of limitations due to the disability of infancy. However, it is the estate of the decedent and not the infant which has the right to bring the cause of action.

This problem presented itself to the Court of Appeals in Hernandez v New York City Health and Hospitals Corp., 78 NY2d 687. The court held that the statute of limitations on the wrongful death claim was tolled until a guardian was appointed. In a case where the sole distributee of the intestate’s estate is an infant, no one is eligible to receive Letters of Administration and bring any action until a guardian is appointed.

In the present matter, the statute of limitations ran until January 30, 2006, two years after claimant was appointed guardian of the infant. At that time, any right claimant had to bring an action for wrongful death expired.

As to the action pending before this Court, claimant was without the authority to bring the action at the time she served and filed it. The Court finds that the original Letters of Administration issued by the Surrogate’s Court are limited as to the cause of action claimant could maintain by its reference to the petition (defendant’s Exhibit D). Claimant did not make an application to amend the petition until May 17, 2006, and said application was not granted until June 1, 2006, about six months after the statute of limitations had passed. Claimant’s action, which had already expired, cannot be revived by such an order. The Court must grant defendant’s application to dismiss the claim as claimant had no standing to bring the action at the time it was commenced.

The Court turns its attention to CPLR 205(a) which states
If an action is timely commenced and is terminated in any other manner than by a 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, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or 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 defendant is effected within such six-month period.

In Hakala v Deutsche Bank AG, 343 F3d 111, the court stated the purpose behind CPLR 205(a) stating
[it] serves a vitally important remedial function. Aggrieved plaintiffs who institute their actions within the time specified by law sometimes suffer a dismissal, intended as provisional, as the result of some remediable deficiency, such as omission of an allegation necessary to the pleading, failure to exhaust an administrative prerequisite, or the like ....The purpose of §205(a) is to avert unintended and capricious unfairness by providing that if the first complaint was timely but was dismissed for such curable reasons, the suit may be reinstituted within six months of the dismissal. Given its remedial importance in guarding against capricious, unfair deprivation of a valuable claim, the Court of Appeals has cautioned that § 205(a)'s "broad and liberal purpose is not to be frittered away by any narrow construction." Morris Investors, Inc. v. Comm'r of Finance, 69 NY2d 933, 935, 516 NYS2d 635, 509 NE2d 329 (1987) (internal quotation marks and citations omitted).

343 F3d at 115.

In examining the dismissal of this action, it is certainly terminated within the parameters of CPLR 205 which would allow claimant to recommence the action. It is not necessary for the Court to grant permission.

Based upon the foregoing, defendant’s motion to dismiss is granted subject to claimant’s timely acting pursuant to CPLR 205.

The Clerk of the Court is directed to close the file.

December 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Motion for Summary Judgment dated July 25, 2006 and filed July 26, 2006; Affirmation of Bridget E. Farrell, Esq. with annexed Exhibits A-D dated July 25, 2006 and filed July 26, 2006; Affirmation in Opposition of George T. Ostrowski, Jr., Esq. with annexed Exhibits A-B dated August 31, 2006 and filed September 7, 2006; Reply of Bridget E. Farrell, Esq. with annexed Exhibit A dated September 14, 2006 and filed September 15, 2006.