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Goldberg v. Mikan-Recro

Court of Appeals of the State of New York
Oct 4, 1977
42 N.Y.2d 1029 (N.Y. 1977)
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Summary

noting that plaintiff, before being appointed decedent's personal representative, had no capacity to assert claims for decedent's wrongful death and personal injuries

Summary of this case from Cherry v. Hillside Manor Rehabil. Extended Care
See 5 Summaries

Opinion

Argued August 29, 1977

Decided October 4, 1977

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS J. HUGHES, J.

Arthur N. Seiff for appellant.

Steven Di Joseph, Thomas R. Newman and Barry G. Saretsky for respondents.

MEMORANDUM.

Order affirmed. In this case, as distinguished from Vastola v Maer ( 39 N.Y.2d 1019) and Caffaro v Trayna ( 35 N.Y.2d 245), the original suit was not brought by one with the capacity to sue for the infant's personal injuries, the infant then being deceased and no personal representative of his estate having been appointed. Accordingly, when the personal representative was appointed and the "second amended" summons served, both subsequent to the expiration of the Statute of Limitations, there was no pre-existing action to which it could "relate back" (see CPLR 203, subd [e]; Vastola v Maer, supra; Caffaro v Trayna, supra).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in a memorandum.

Summaries of

Goldberg v. Mikan-Recro

Court of Appeals of the State of New York
Oct 4, 1977
42 N.Y.2d 1029 (N.Y. 1977)

noting that plaintiff, before being appointed decedent's personal representative, had no capacity to assert claims for decedent's wrongful death and personal injuries

Summary of this case from Cherry v. Hillside Manor Rehabil. Extended Care

In Goldberg, the Court of Appeals ruled that the relation back provisions of CPLR § 203(e) cannot be employed by a plaintiff seeking to amend a defective complaint to reflect his subsequent appointment as administrator. Rather, CPLR § 203(e) applies only where there is a "valid[ly] pre-existing action to which [an] amendment can relate back;" the action in Goldberg was not a "validly preexisting action" because plaintiff's failure to demonstrate in the initial filing that he was the decedent's personal representative was an incurable defect.

Summary of this case from Byrne v. U.S.

In Goldberg v. Camp Mikan–Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8 (1977), the plaintiff commenced a timely wrongful death action in his own name following his son's death.

Summary of this case from U.S. Bank v. DLJ Mortg. Capital, Inc.

In Goldberg v Camp Mikan-Recro (42 NY2d 1029 [1977]), a personal representative was appointed and an amended pleading served subsequent to the expiration of the statute of limitations.

Summary of this case from MATTER OF ASBESTOS LITIG.

In Goldberg v. Camp Mikan-Recro (42 NY2d 1029), a personal representative was appointed and an amended pleading served subsequent to the expiration of the statute of limitations.

Summary of this case from In the Matter of Asbestos Litig
Case details for

Goldberg v. Mikan-Recro

Case Details

Full title:MAX GOLDBERG, Individually and as Administrator of the Estate of CRAIG D…

Court:Court of Appeals of the State of New York

Date published: Oct 4, 1977

Citations

42 N.Y.2d 1029 (N.Y. 1977)
398 N.Y.S.2d 1008
369 N.E.2d 8

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