Plotkin v. New York City Transit Authority , 632 N.Y.S.2d 979 ( 1995 )

—In an action to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated February 2, 1994, which denied its motion (1) to vacate a prior order of the same court, dated June 4, 1992, granting the plaintiffs application to be substituted as administrator of the estate of Gustave Martinez, and (2) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

Inasmuch as the summons and complaint were timely served, this action cannot be considered a nullity merely because the original plaintiff lacked the capacity to sue (see, Carrick v Central Gen. Hosp., 51 NY2d 242, 249; Seidensticker v Huntington Hosp., 194 AD2d 718). Although the defendant maintains that the subsequent order substituting the Public Administrator as plaintiff was obtained by fraud, we agree with the Supreme Court that the record does not support this contention. Because the defect in capacity was cured prior to the defendant’s motion to dismiss, the motion was properly denied (see, Seidensticker v Huntington Hosp., supra; Snay v ■ Cohoes Mem. Hosp., 110 AD2d 1021, 1022). Sullivan, J. P., Miller, Copertino and Goldstein, JJ., concur.