Guerra v. American Access Care Physician, PLLC
Opinion
Guerra v American Access Care Physician, PLLC 2024 NY Slip Op 31092(U)
March 29, 2024
Supreme Court, New York County Docket Number: Index No. 805298/2023 Judge: John J. Kelley
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.
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/31/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART 56M Justice
---------------------------------------------------------------------------------X INDEX NO. 805298/2023 CLAUDIA GUERRA, as proposed administratrix of the estate of MIGDALIA POLANCO, 09/12/2023, MOTION DATE 11/08/2023 Plaintiff,
MOTION SEQ. NO. 001, 002 -v-
AMERICAN ACCESS CARE PHYSICIAN, PLLC, SERGIO NARVAEZ, M.D., PARK AVENUE DIALYSIS CENTER, DECISION + ORDER ON BRENT WILLIAMS, M.D., and ANNA JUMAO, R.N., MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 20,
21
were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 28, 29 were read on this motion to/for DISMISSAL .
In this action to recover damages for medical malpractice and wrongful death, the defendants American Access Care Physician, PLLC, and Sergio Narvaez, M.D. (together the AACP defendants) move pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them, based on the plaintiff’s lack of capacity to prosecute the action (MOT SEQ 001). The defendants Park Avenue Dialysis Center and Anna Jumao, R.N. (together the Park Avenue defendants) separately move for the same relief as to them. The plaintiff opposes both motions. The AACP defendants’ motion is granted, the Park Avenue defendants’ motion is deemed to be a motion for summary judgment dismissing the complaint on the ground of lack of capacity, the motion is thereupon granted, and the complaint is dismissed insofar as asserted against the AACP defendants and the Park Avenue defendants, albeit without prejudice to the
805298/2023 GUERRA, CLAUDIA vs. AMERICAN ACCESS CARE PHYSICIAN, PLLC ET AL Page 1 of 6 Motion No. 001 002
1 of 6
[* 1]
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/31/2024
plaintiff’s commencement of a new action pursuant to CPLR 205(a) under a new index number as to those defendants after she obtains appropriate letters of administration.
Migdalia Polanco (the decedent) was the defendants’ patient. She died on July 13, 2021. On June 21, 2023, the plaintiff Claudia Guerra, who seeks to be appointed as the administrator of the decedent’s estate, commenced this action against all of the defendants. As of that date, Guerra had not been issued letters of administration or letters testamentary by the Surrogate’s Court pursuant to SCPA articles 10 or 14, respectively. The AACP defendants made their motion under Motion Sequence 001 on August 15, 2023, while the Park Avenue defendants made their motion under Motion Sequence 002 on September 6, 2023 (see CPLR 2211). In affirmations dated September 6, 2023 and September 27, 2023, respectively, the plaintiff’s attorney suggested that, if the court were to dismiss the complaint for the plaintiff’s lack of capacity, it do so without prejudice to commencement of a new action for the same relief, pursuant to CPLR 205(a), after Claudia Guerra obtained letters of administration.
Initially, the court notes that the Park Avenue defendants are seeking relief pursuant to CPLR 3211(a)(3). Reliance on that statute, however, is improper. CPLR 3211(e) provides that
“At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading”
(emphasis added). The court notes that the Park Avenue defendants have preserved the affirmative defense of lack of capacity by asserting it in their respective answers as the sixth affirmative defense; however, in light of the provisions of CPLR 3211(e),
“[a] motion to dismiss the complaint based on a ground listed in CPLR 3211(a) . .
. must be made before answering (see CPLR 3211[e]: Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:21). A motion for summary judgment, on the other hand, does not lie until after service of the responsive pleading (id.). Summary judgment is, therefore, a post answer device (id.). Any of the grounds on which a CPLR 3211 motion could have been made here . . . can he used as a basis for a motion for summary judgment afterwards as long as the particular objection, although not taken by a CPLR 3211 motion before service of the answer, has been included as a defense in the 805298/2023 GUERRA, CLAUDIA vs. AMERICAN ACCESS CARE PHYSICIAN, PLLC ET AL Page 2 of 6 Motion No. 001 002
2 of 6
[* 2]
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/31/2024
answer and thereby preserved (CPLR 3211[e]: Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:20). Having preserved the affirmative defense in their answer, defendants were not also entitled to serve a pre-answer motion to dismiss, which is a procedural irregularity. Defendants [are] required to move for summary judgment on the [CPLR 3211(a)] issue inasmuch as they had served their answer”
(Lusitano Enters., Inc. v Horton Bros., Inc., 2018 NY Slip Op 32011[U], *2-3, 2018 NY Misc LEXIS 3587, *4 [Sup Ct, Suffolk County, Aug. 14, 2018]; see Castro v Fraser, 2022 NY Slip Op 30903[U], *5, 2022 NY Misc LEXIS 1368, *7 [Sup Ct, N.Y. County, Mar. 15, 2022] [Kelley, J.]; Higgins v Goyer, 2018 NY Slip Op 33520[U], *2, 2018 NY Misc LEXIS 9607, *3 [Sup Ct, Rensselaer County, Nov. 1, 2018]; see also McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]).
Consequently, to the extent that the Park Avenue defendants seek relief on the ground articulated in CPLR 3211(a) (3), such relief is unavailable pursuant to that statute at this juncture, but is available only via a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d 276, 282 [1982] [“we answer in the affirmative the question . . . concerning whether defendant may move after answer for summary judgment on his jurisdictional defense”]). The court concludes that, in this case, there are no disputed issues of fact with respect to whether Guerra is only a proposed administrator, leaving only a pure issue of law for the court to consider, and the parties clearly have charted a summary judgment course. Hence, the court deems the Park Avenue defendants’ motion pursuant to CPLR 3211(a)(3) to be a motion for summary judgment dismissing the complaint on the ground that Guerra lacks capacity, without the need for providing additional notice to the parties pursuant to CPLR 3211(c) (see Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1st Dept 1987]; Ramos v Kalsow, 2023 NY Slip Op 32954[U], *2-3, 2023 NY Misc LEXIS 4648, *2-3 [Sup Ct, N.Y. County, Aug. 24, 2023] [Kelley, J.]; see also Mic Prop. & Cas. Ins. Corp. v Custom Craftsman of Brooklyn, Inc., 269 AD2d 333, 334 [1st Dept 2000]).
805298/2023 GUERRA, CLAUDIA vs. AMERICAN ACCESS CARE PHYSICIAN, PLLC ET AL Page 3 of 6 Motion No. 001 002
3 of 6
[* 3]
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/31/2024
In the summons and complaint, Claudia Guerra characterized herself as the “proposed administratrix” of the decedent’s estate.
Free access — add to your briefcase to read the full text and ask questions with AI
2024 NY Slip Op 31092(U) (Guerra v. American Access Care Physician, PLLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.