New York State Court of Claims

New York State Court of Claims

MASERA v. THE STATE OF NEW YORK, #2008-033-289, Claim No. 110957, Motion No. M-73962


Motion by defendant to dismiss claim alleging claimant, as Administrator of decedent’s Estate, lacked the capacity to sue. The Court found that claimant received unlimited Letters of Administration which specifically granted him all powers and duties the law provides. Defendant’s motion for summary judgment was denied.

Case Information

JOHN MASERA, deceased, by RONALD MASERA, as Administrator of his Estate
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:
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for the wrongful death of John Masera (hereinafter “decedent”), deceased, by Ronald Masera, as Administrator of his Estate, due to the alleged medical malpractice of the State of New York (hereinafter “State”). The alleged incident occurred between January 12, 2004 and February 22, 2004, at Stony Brook University Hospital (hereinafter “Hospital”).

Decedent was admitted to the Hospital on January 12, 2004. On January 27, 2004, decedent underwent a total hip replacement. After surgery, decedent went into cardiac arrest and suffered other complications until his death on February 22, 2004. On March 31, 2004, claimant served a notice of intention on the Attorney General’s Office. Thereafter, on May 24, 2004, claimant was granted Letters of Administration by the Surrogate of Suffolk County.

Defendant moves to dismiss the claim by alleging claimant lacks the capacity to sue[1]. In support of the application, defendant attaches the Petition for Letters (defendant’s Exhibit B). On page 2 of the Petition claimant indicated that there was no cause of action existing on behalf of the decedent at the time of his death which would survive. Defendant further argues that claimant was aware of the notice of intention (served on March 31, 2004) on the date claimant filed the Petition for Letters (May 16, 2004). As the claim is now beyond the statute of limitations, CPLR 205(a) is not available to allow claimant to refile the claim.

In opposition, claimant argues that the Letters of Administration are general in nature with “the powers and duties thereunto appertaining by law” (claimant’s Exhibit A). Claimant argues that no limitations are noted on the Letters of Administration. In addition, claimant submits a decision and order from the Honorable John Czygier of the Suffolk County Surrogate’s Court. The decision and order addressed a petition by claimant to amend the original Letters of Administration to grant claimant the right to bring a wrongful death action. The petition was denied. According to the court, claimant received “full” Letters of Administration and thus, has all the powers enumerated under EPTL §11-1.1, et seq.

Court of Claims Act §10(2) states that any cause of action for wrongful death must be served and filed within 90 days of the issuance of the letters of administration, unless a notice of intention is served. 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.

In making this application, defendant relies on this Court’s decision in Haydamach v State of New York (M-72052). In Haydamach, decedent died as the result of an automobile accident. The heir to the intestate estate was an infant. Limited Letters of Administration were granted to the administrator of the estate for the purpose of bringing a wrongful death action against the driver of the other vehicle. The administrator began that action and then commenced a medical malpractice action against the State of New York. As the Letters of Administration were specifically limited to allow the administrator to bring an action only for the motor vehicle accident, this Court granted defendant’s motion to dismiss as claimant lacked capacity to sue.

In pertinent part EPTL §11-1.1(b)(13) states:
In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized: . . . To contest, compromise or otherwise settle any claim in favor of the estate, trust or fiduciary or in favor of third persons and against the estate, trust or fiduciary.

Unlike the Letters of Administration in Haydamach, in the present case, there is no limitation of the Letters. The Court does not reach the same result it previously reached in Haydamach.

This Court is in agreement with the Honorable John Czygier. Claimant received unlimited Letters of Administration which specifically granted him all powers and duties the law provides. The bringing of a wrongful death action against defendant (or any defendant) is clearly authorized in EPTL §11-1.1.

Based upon the foregoing, defendant’s motion for summary judgment is denied.

June 25, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated September 14, 2007 and filed September 17, 2007; Affirmation of Bridget E. Farrell, Esq. with annexed Exhibits A-R dated September 14, 2007 and filed September 17, 2007; Affirmation in Opposition of Carolyn M. Caccese, Esq. with annexed Exhibits A-C dated November 20, 2007 and filed November 23, 2007; Reply of Bridget E. Farrell, Esq. with annexed Exhibits dated November 21, 2007 and filed November 26, 2007; Supplemental Affirmation in Opposition of Carolyn M. Caccese, Esq. with annexed Exhibit A dated December 13, 2007 and filed December 14, 2007.