Plaintiff’s decedent goes to a Queens motel and is shot dead. The shooter eventually pleads guilty to manslaughter. How much time does the estate have to sue the shooter, the hotel and was it given correct advice on the statute of limitations by its attorney?
Ross v Saravanos ;2011 NY Slip Op 31310(U) ; May 8, 2011; Supreme Court, New York County
Docket Number: 108017/2010; Judge: Emily Jane Goodman tells us that the shooter was sued in plenty of time, but the hotel was not, and that a case against the attorneys may continue on in legal malpractice.
"on December 4, 2004, Ross was shot by defendant Saravanos (Saravanos), while on the premises of a hotel located in Queens, New York, owned, operated, managed and
maintained by the Hotel Defendants. that Ross died that day, as a result of being shot by Saravanos. On November 19, 2009, Saravanos pled guilty to First Degree Manslaughter (Penal Law 1 2 5 . 2 0 ) , and on December 15, 2009, he was sentenced to 13 years in prison and five years of post-release .parole supervision.
On or about December 5, 2005, the Surrogate’s Court issued to plaintiff Letters of Guardianship (of property) of Elijah Franklin Osman Ross, the son of Robert L. Ross. On or about July 30, 2009, the Surrogate’s Court issued Letters of Administration of the property of the Estate of Robert F. Ross to plaintiff. Plaintiff filed this action againat the Hotel Defendants and GASK on June 17, 2010. Plaintiff alleges that the Hotel Defendants owed a duty to its guests, were negligent in
permitting Saravanos to enter the hotel and remain on the premises, and failed to take reasonable precautions to insure the safety of its guests. With respect t o GASK, plaintiff alleges
that she had retained the defendant law firm to represent her in connection with her efforts to obtain the Letters of Guardianship and Letters of Administration, and that GASK knew or should have known that she intended to file litigation in connection with " the death.
"Plaintiff also argues that the claims against the Hotel Defendants are timely under CPLR 213-b, which extends the statute of limitations for personal injury actions brought by victims of
a crime, against ‘a defendant: (1) convicted of a crime which is the subject of such action." CPLR 213-b. However, as the Court ruled in Vasquez v Wood (18 AD3d 645, 646 [2d Dept Z O O S l ) , the
Hotel Defendants have not been convicted of a crime, and there have been no cases which broaden the applicability of this provision as the First Department has broadened CPLR 215 (8) in
Alford. Accordingly, the motion to dismiss is granted.
Plaintiff alleges that the failure by GASK to inform her of the applicable statute of limitations for her claim against the Hotel Defendants constitutes legal malpractice. GASK moves to dismiss the complaint as against it contending that since plaintiff has argued that the statute of limitations has been tolled by operation of either CPLR 215 ( 8 ) or CPLR 213-b, and, thus, her case against the Hotel Defendants was timely commenced, she should not be permitted to simultaneously argue that GASK has committed malpractice by failing to apprise her of the proper statute of limitations. Plaintiff may however assert alternate causes of action even though they may be inconsistent.
See CPLR 3014.
ORDERED on Motion Sequence Number 002, that the motion of defendant Goldfarb, Abrandt, Salzman & Kutzmin, LLP is denied.