SHORT FORM ORDER. DEMETRES P. STAVROPOULOS, as Administrator of the Estate of PANAGIOTIS D. STAVROPOULOS, Deceased. Plaintiffs

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESENT: HONORABLE JOHN M. GALASSO, J.S.C DEMETRES P. STAVROPOULOS, as Administrator of the Estate of PANAGIOTIS D. STAVROPOULOS, Deceased and Individually, MARIA MAKRIDOU STAVROPOULOS and ELENI P. STAVROPOULOS, Plaintiffs Index No /01 Sequence #OOl,002 -against - Part 44 5/l 5/2002 FORTUNATO BARILIA and PASQUALE BARILLA and PAMELA A. LIAPAKIS, ESQ. Defendants Notice of Motion Notice of Cross-Motion Affirmations In Opposition Reply Affirmation & Supplemental Reply u-----_--_-_ ~~~-~~-~~--~ ~--~ Due to the unusal set of circumstances in this case and the misapprehension of certain facts by the parties involved, the Court will delineate pertinentinformation in a time-line format and address the relevant issues thereafter. Plantiffs: Panagiotis Stavropoulos, decedent, naturalized U.S. citizen (hereinafter the decedent ). Maria, his second wife, non-u.s. citizen, Greek National and permanent U.S. resident, domiciled in New York. Eleni, his daughter from his first marriage, born 4/l 5/82, U.S. Citizen domiciled in New York at time of death, now domiciled in Greece. Demetres, his son from his first marriage, born 1 O/8/83, U.S. Citizen and New York domiciliary, formally adopted in Greece by Maria. 5/l 4/99 automobile/pedestrian accident. 6/04/99 Decedent dies.

2 STAVROPOULOS vs. FORTUNATO BARILIA Index No / /30/99 4/l 5/00 6/04/O 1 Maria and Demetres sign a retainer agreement with Pamela A. Liapakis, Esq.; Demetres and Eleni, not a signatory, ore infants. Eleni reaches majority. Summons and Complaint filed in the name of Eleni, as intended administrarix (Index No /01). Plaintiffs ore not listed individually in caption. 7/l 4/01 Stanley S. Hausen retained by Maria and Demetres and letter of notification sent to attorney Liapakis. 1 O/08/0 1 Demetres turns 18, appointed us administrator. 1 o/30/0 1 Eleni visites the United States and executes Q stipulation to change attorneys with Demetres and Maria. 11/02/o 1 Summons and Complaint filed on behalf of Demetres us Administrator and Demetres, Maria and Eleni individually. Pamela A. Liapakis is added as defendant in on alternative cause of action of legal malpractice (Index No /01). Plaintiffs make the instant motion seeking multiple relief. First and foremost they request that the affirmative defense of Statute of Limitations be stricken in both actions (Index Nos /01 and /01) due to the tolling effect of the infancy of Demetres and that the Court permit the action to be amended to include Bank of America Auto Finance Corp. as a party defendant with leave to serve the proposed amended summons and complaint. In addition, plaintiffs seek certain remedies against Ms. Liapakis and she cross-moves in the legal malpractice cause of action. These issues will be addressed after the Statute of Limitations concerns.

3 STAVROPOULOS vs. FORTUNATO BARILLA Index No /01 3. On June 4, 1999 decedent died intestate, allegedly as a result of the pedestrian occident wherein he was struck by defendants automobile on May 14, A cause of action to recover for a wrongful act resulting in a decendent s death must be commenced within two years by on appointed administrator (EPTL ). A three year Statute of Limitation applies, subject to tolling principles, to actions for pain and suffering pursuant to Insurance Law and CPLR $208. At the time of decedent s death, both Eleni and Demetres were infants and not eligible to be appointed administrator for purposes of bringing the appropriate actions. Maria, as a New York domiciliary and permanent United States resident was eligible for such on appointment (Re Gaffneys Estate, 74 7 Misc. 453; SCPA 707(7)(c). Hod she applied, however, the court in its discretion could hove declared her ineligible due to her limitations in speaking, reading and writing the Engish language (SCPA 707(2)). The low is clear in that there must be a timely appointment of a personal representative to commence a wrongful death action (Ratka v. St. Francis Hospital, et al, 44 NY2d 604). As of June 4, 2001, tyo years after decedent s death, Maria was arguably eligible for appointment OS noted above., Eleni having reached the age of majority on April 15, 2000 WQS likewise eligible. It must be noted that although Maria, as step-mother to Eleni was the natural guardian during Eleni s infancy and at the time Ms. Liapakis was retained (Eleni s mother having passed away in 1988), that appellation was no longer appropriate when Eleni come of age. Consequently, Q wrongful death action was commenced with Eleni as the intended administratrix on the second year anniversary of her father s death. Plaintiffs seem to indicate in the instant motion that Eleni was not actually represented by Ms. Liapakis due to the fact that she did not sign the original retainer agreement on June 30, Presumably the argument is forwarded in on effort to declare the first action o nullity. However, on that dote Eleni was still a minor and her stepmother Maria signed the retainer agreement. Eleni herself signed a letter on October 30, 2001 while on a visit to the United States to change her representation to Stanley Hausen, Esq. Upon these particular facts, this Court concludes that as of June 4, 2001 when the first action was commenced Eleni was still represented by Ms. Liapakis.

4 STAVROPOULOS vs. FORTUNATO BARlLlA Index No /01 4. This matter presents the seminal issue of whether the wrongful death action wds timely and appropriately commenced with Eleni as the intended administratrix; and if so, how was that effected by the actual appointment of her brother four months later. The Court of Appeals has noted that a personal representative is o mere nominal party acting as agent or trustee for the beneficiaries (Hernandez v. NYCHHC, 78 NY2d 687, 693). In Hernandez, the Court advocated striking on appropriate balance between having certainty to human affairs with the fairness of not unreasonably denying a claimant the right to assert a claim (ld. at 694). Unlike in Rathka v. St. Francis Hospital, supra, the statutory period when Eleni s papers were filed was within the requisite two years. This one fact separates the instant matter from years of case low seemingly fatal to plaintiffs maintenance of the wrongful death cause of action. Both plaintiffs and defendants ore mistaken in their analyses that the tolling rules of CPLR $208 apply to the determination of this motion.. At first blush it appears that the relation-back provisions of CPLR 5203(e) should be explored. In George v. Mt Sinai Hospital, 47 NY2d 7 70, the Court of Appeals in referring to Goldberg v. Camp Mikan-Recro, 42 NY2d 7029 emphasized that CPLR $203 is dependent on the existence of a valid pre-existing action. The Court held that cases in which the prior action WQS defective and must be dismissed CPLR $205(o) applies. CPLR 5205(a) states OS follows: If on action is timely commenced on is terminated in any other manner than by a voluntary discontinuance, Q failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute this 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 some transaction or occurrence or series of transactions or occurrence within six months after the termination provided the new action would hove been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

5 STAVROPOULOS vs. FORTUNATO BARILIA Index No /01 5. The Court in George interpreted this section to include situations where a claimqnt has foiled to commence o wrongful death action due to on error not pertaining to either claimant s willingness to prosecute in a timely fashion or to the merits of the underlying claim. Such is the case at bar. In Car-rick v. Central General Hospital, 5 7 NY2d 242, the Court held that the requirement of CI qualified administrator is essential to a wrongful death suit but it is in no way related to the merits of the underlying claim. Although the first action was flowed by the use of the denomination of proposed adminstratnx. it was nonetheless timely commenced. In foofnofe 2, the Court stressed that the existence of a qualified administrator is essential to the maintenance of the action; mere capacity to sue is not enough. In the instant matter since Eleni wos qualified as on intended odministrotrix the action may be maintained with the application of CPLR 205(0). Much has been mode about the fact that at some point prior to suit Eleni changed her domicile from New York to Greece and her attorney was evidently unaware of that fact or mistaken in placing Eleni s residence at the address in New York where her brother and stepmother lived. This Court finds that Eleni s change in domicile is not material to the issues in this application. Indeed, in George, suora, the defect was actually one of capacity to sue. That action was brought by the named plaintiff who, unbeknownst to counsel, hod passed away before it was filed. The reasoning in George, o survival action for personal injuries, likewise applies to cases such as this one where the defect in the prior action is the absence of CI formal element of the cause of action, a duly appointed administrator (Currick, supra). Demetres brought the second action the moment he was mode the duly appointed administrator. The proposed amended complaint reiterates the causes of action set forth in the first complaint, wrongful death and survival actions. Tcking Carrick one step further, this Court rules that since Q personal representative is a mere nominal party, Demetres substitution does not effect the applicablity of CPLR $205(o). Accordingly, the first complaint under Index Number /01 is dismissed. Plaintiffs without opposition ore given leave to include Bank of America Auto Finance Corporation as

6 STAVROPOULOS vs. FORTUNATO BARILLA Index No /01 6 o party defendant. They ore also granted leave to serve the proposed amended summons and complaint under Index Number /01 with th e exception of the fifth alternative cause of action against defendant Pamela Liapakis, Esq. The affirmative defense of Statute of Limitations is stricken. On the tangential issue concerning Pamela Liapakis, Esq., she has cross-moved to strike the fifth cause of action for legal malpractice as premature. For the reasons stated in her affirmation and as set forth above, this Court grants her cross-motion and her nome shall be removed from the caption us a party defendant. Doted July 17, TERED JUL