George v. Mt. Sinai Hosp

George v. Mt. Sinai Hosp. (47 N.Y.2d 170 [1979]) involved a malpractice action commenced in the name of a plaintiff, who died prior to the service of the summons and complaint upon the defendant. Thereafter, counsel sought to serve defendant's counsel with an amended summons, which named the administratrix as plaintiff. The parties stipulated to dismissal of the first action, and although the statute of limitations had expired, the Court ruled that the plaintiff could take advantage of CPLR 205 (a) and recommence the action within six months after such dismissal. Although the personal injury action survived the injured party's death, the Court stated that dismissal was, nevertheless, the appropriate remedy for such action being brought or continued by someone other than the personal representative. However, the Court emphasized that such dismissal was based merely upon a lack of capacity to sue, and in this regard, was unlike a wrongful death action, in which appointment and qualification of an administrator is a necessary element to the very existence of the cause of action. Also, the Court cited EPTL 5-4.1 and 5-4.3, and reiterated that a wrongful death action is brought, not on behalf of the estate, but rather on behalf of the distributees, and any recovery relates to economic damages suffered by the distributees as the result of the decedent's death. In George v. Mt. Sinai Hosp., an action brought by an administrator pursuant to CPLR 205 (a) after the dismissal of a prior action commenced by a deceased plaintiff, the Court rejected the defendant's argument that "the prior action was a 'nullity' rather than an action, and thus there was in fact no prior action." (Id. at 175.) The Court reasoned that "the relation-back provisions of CPLR 203 are dependent on the existence of a valid pre-existing action," but that CPLR 205 (a) permits commencement of a new action where "the prior action was defective and so had to be dismissed" but where the prior action otherwise complied with the requirements of CPLR 205 (a), including timely commencement. (Id. at 179-180.)