126 A.D.3d 1433 [4th Dept., 2015]
This hybrid Article 78 proceeding and declaratory judgment action was commenced in the name of the Town Board to compel the respondent-defendant Fire Department to comply with a contract between it and the Town Board. The initial problem was that the Town Board has no capacity to sue in its own name: that authority is lodged by the Town Law in the town itself. The Town Board may direct its officers to institute the action, but the action must be in the name of the town. Dismissal is not required, however, as the irregularity may be corrected under CPLR 2001, the Town substituted for the Board, and the caption amended accordingly.
See, for another example, Villafane v Banner, 87 Misc2d 1037 , where the infant plaintiff’s grandmother and foster parent purported to sue as “natural guardian.” The informal arrangement, though of long standing, did not rise to the level of “legal custody,” and so the grandmother lacked capacity to sue. There was still no need to dismiss the complaint, and the proper remedy was a nunc pro tunc appointment and substitution of a guardian ad litem.
That is not to say that capacity issues can always be corrected so easily. The back story in Carrick v Central General Hospital, 51 NY2d 242 , was that a prior wrongful death action had been commenced by the “proposed administrator” of the decedent’s estate. The existence of an actual personal representative, with appropriate letters, is a condition precedent to a wrongful death action, and the prior action was dismissed. By the time letters were received, and an action by the administrator with actual capacity begun, the limitations period had expired. The issue in Carrick was whether the prior action was an effective predicate for the 6-month extension of CPLR 205 (a), or whether it was a nullity. It was held to be an effective predicate, and so the claim was saved.