SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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DAMARIS CHANDLER, as administrator ad prosequendum of the estate of JOSEPH E. CHANDLER, JR., deceased, Plaintiff

- Respondent,

v. TODD W. KASPER, Defendant

- Appellant,
and THOMAS C. KASPER, Defendant,
and KAZZ, INC. , d/b/a KASPER'S CORNER and KASPER AUTOMOTIVE, Defendant s - Respondent s .

_____________________________

Argued September 13, 2021

– Decided October 7 , 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

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- 20 Before Judges Sabatino and Rothstadt. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Docket No. L

- 4710

- 18. Neal A. Thakkar argued the cause for appellant (Sweeney & Sheehan, PC, attorneys; Frank Gattuso and Jacqueline M. DiColo, on the briefs). Robert Douglas Kuttner argued the cause for respondent Damaris Chandler

. Mark R. Sander argued the cause for respondent Kazz , Inc. (Thomas, Thomas & Hafer, LLP, attorneys; Mark R. Sander, of counsel and on the brief).
PER CURIAM In this wrongful death , N.J.S.A. 2A:31

- 1 to

- 6, and Survivor's Act,
N.J.S.A. 2A:15

- 3, action , w e granted d efendants Todd W

. Kasper , Kazz, Inc. d/b/a Kasper's Corner , and Kasper Automotive, leave to appeal from two January 22, 202 1 orders entered by the Law Division , denying defendants' motion for par tial summary judgment, and permitting plaintiff to amend her previously filed complaint to correct her standing by designat ing herself both as Administrator A d Prosequendum and the General Administrator of her deceased father's estate. According to defend ants ' arguments before the motion judge and now on appeal , plaintiff could not have standing to bring the S urvivor 's Act3 A

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a ction because no estate existed at the time she filed her complaint. And, by the time letters of administration were issued to plaintiff and she sought to amend her complaint, the statute of limitations for the S urviv or's Act a ction ran years before. The motion judge acknowledged the deficiency in plaintiff's initial standing but still denied defendants ' motion to dismiss as a matter of equity. W e

reverse that determination and remand for entry of orders dismissing plaintiff's
S urviv or 's Act action for lack of standing because plaintiff's original complaint was a nullity and a ny amendment sought after the statute of limitation s ran could not relate back to that complaint. The undisputed facts giving rise to the complaint in this action are taken from the motion record and summarized as follows. The decedent, Joseph E. Chandle r , was struck by an automobile while crossing a street on December 21, 2016. The vehicle that struck the decedent was driven by defendant Todd W.
K asper and owned by defendant Thomas C. K asper . As a result of being struck by that vehicle, the decedent su ffered significant injuries a nd passed away six days later. Just prior to the statute of limitations running as to the decedent ' s and his heirs ' claims, on December 18, 2018, the decedent 's daughter, plaintiff D a maris Chandler , filed a two

- count complaint as Administrator A d Prosequendum of4 A

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her father's estate. The c omplaint alleged that the decedent died on December 27, 2016 , intestate and that plaintiff had been appointed as Administrator A d Prosequendum prior to the filing of the complaint. The first count asserted a claim under the S urviv or's A ct for the personal injuries and pain and suffering the decedent experienced prior to his death. The second count asserted a wrongful death action , which claime d that the decedent's daughters, plaintiff and India Ruh l man , his son Kerri Chandler , and his other "survivors and next of kin"

were entitled to damages. In response , d efendants filed answers to the complaint . Defendant s Todd and Thomas Kasper's answer a sserted as a separate
defense that plaintiff's claims were statutorily barred by both the wrongful death
statute and by the Survivor's Act. T hereafter the parties engaged in discovery. At no time prior to the filing o f the subject summary judgment motion s did
defendants otherwise assert t hat plaintiff lacked standing to bring the Surviv or's
Act a ction. Thereafter, in November 2020, defendants filed a motion for summary judgment seeking dismissal of the Surviv or's Act a ction because plaintiff lacked standing to bring that claim as letters of g eneral a dministration had never been issued to her

. P laintiff filed opposition to the motion and a cross

- motion to file5 A

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a second amendment complain t to reflect that on December 8 , 2020 , plaintif f obtained letters of g eneral a dministration. In a certification filed in support of her cross

- motion and in opposition to defendants' motion, plaintiff explained that there was a delay in her being able to seek appointment as both Administrator A d Pros eque n dum and as General
Administrator of her father's estate due to disagreements between her and her siblings. Moreover, she understood from discussions with representatives of the county surrogate's office that because there were no assets in the estate , it was only necessary for her to be appointed as Administrator A d Prosequen d um to fil e the lawsuit and later be appointed as General Administrator to distribute any recovery. According to plaintiff, only when the estate had assets would she need to be appointed as general administrator , which she began to pursue only when
defendants "made a small offer in mediation" to settle th is case in August 2020. However, i t took additional time to persuade her siblings to agree to her appointment. After further submissions, the motion judge considered the parties ' oral arguments o n January 22, 2021. Afterward, the motion judge denied defendants ' motion and granted plaint iff's cross

- motion, plac ing his reasons on the record that same day

. In his oral decision, the motion judge discussed the case law6 A

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relied on by the parties and raised by the judge, before conclud ing that plaintiff acted diligently and "provided [defendant s] timely notice of the [Survivor's Act] claim by the initial complaint and

. . . perhaps there 's a defect in the standing of

. . . plaintiff, but [ she ] was seeking to proceed diligently. [ And, ] New Jersey Law holds that it would be inequitable to deny [ a ] party their day in court because of ignorance." The judge also determined that " [ a ] deceased party['s] claim[] can only proceed through either [ A ] dministration [ A ] d [ P ros eqeundum ] or through an estate being raised." He stated that defendants ' argument as to standing was at best a "technical argument" and that " [ s ] tatute of limitation s defenses are not permitted where mechanical application would inflict an obvious and unnecessary harm on



### . . . the party who holds the claim without advancing the legitimate purpose." And, according to the judge " [ t ] o deny a relation back

. . . serves no legitimate purpose." The judge also relied on the fact that the parties participated in a n arbitration and in discovery for years without defendants raising any issues as to standing. However, the judge found that "becaus e standing ' s a threshold issue [that is] very similar to jurisdiction, it cannot be waived." Nevertheless , a defect in standing did not "mandate []

. . . the sanction of dismissal."7 A

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T he judge also found support in the fact that plaintiff had difficulty i n pursuing the issuance of letters of g eneral a dministration because of disagreements between her and her siblings. H e found that the siblings only agreed to renounce their rights to being named Administrator A d Prosequendum immediately before the filing of the complaint , but "they wouldn't permit full representation of the estate by [plaintiff .]" Moreover , plaintiff relied on information she received from the surrogate 's office that seemed to indicate that she c ould initially pursue the action as Adminis trator A d Prosequendum and later could seek letters of administration that would allow for distribution of any funds that may be recovered in the action. It was not until December of 2020 that plaintiff's siblings renounced and allowed her to proceed to s eek letters of administration. Therefore , the judge concluded that he should "permit the cure of the standing issue" by allowing the amendment of the complaint to relate back
to remedy any issue as to standing. This appeal followed. On appeal , defendants challenged the judge 's legal conclusion that despite the running of the statu t e of limitations plaintiff should be allowed to amend the complaint to relate back to its initial filing. "Because the question presented, whether decedent's estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in [plaintiff ' s]8 A

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name [as Administrator A d Prosequendum years after the running of the statute of limitations] is solely a question of law, our review is de novo." Repko v. Our Lady of Lourdes Med

. Ctr

. Inc. , 464 N.J. Super. 570, 574 (App. Div. 2020).
In Repko , the plaintiff's attorney had filed a complaint in the name of his deceased client without knowing she was dead. When he learn ed of her passing, he sought to amend the complaint to substitute the client's estate and to add a claim under the Survivor's Act, but did so three years after the cause of action arose and after the statute of limitations had run. In our opinion, we reve rsed the denial of defendant's motion to dismiss the complaint as barred by the statute of limitations and remanded for the entry of an order dismissing the complaint with prejudice. Id . at 578. There, we observed that the original complaint was

a " nulli ty " because a deceased person cannot be a plaintiff

. Id. at 575. W e concluded there was nothing for an amendment of the complaint to relate back
to , which warranted dismissal of the S urviv or's A ct claim. Id. at 573. In the present action, the motion judge and plaintiff on appeal rejected defendants' argument that o ur holding in R epko was applicable to this case. We disagree. At the outset , we note the important distinction between a wrongful death
action and a S urviv or's A ct a ction; the former belonging to the individual9 A

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survivors of the decedent and the later belonging only to the decedent's estate. "[T]he S urviv or 's A ct preserves to the decedent's estate any personal cause of
action that decedent would have had if he or she would have survived." Smi th v. Whitaker , 160 N.J. 221, 233 (1999). The Surviv or's Act permits only an "executor , suing on behalf of [an] estate , to recover the damages [the] testator would have had if [the testator] was living. " Repko , 464 N.J. Super

. at 577 (quoting Smith , 160 N.J. at 233 ). On the other hand, a w rongful d eath action must "be brought in the name of an [ A ] dministrator [ A ] d [ P ] rosequendum of the decedent for whose death damages are sought," or by an executor where the decedent's will has been probated, N.J.S.A. 2A:31

- 2, and any recovery belongs to the decedent's heirs

. S ee N.J.S.A. 2A:31

- 4

. As explained by Judge Milton A. Fel ler many years ago in Kern v. Ko g an , 93 N.J. Super. 459 (Law Div. 1967), there is a significant difference between the two actions:

T he death statute gives to the personal representatives a cause of action beyond that which the deceased would have had if h e had survived , and based upon a different princip le , a new right of action. The recovery goes , not to the estate of the deceased person, but to certain designated persons or next of kin. In the recovery the executor or administrator as such has no inter est; the fund is not liable to the debts of the deceased, nor is it subject to disposition by will, for the reason that the primary concern of the [ A ] ct

. . . is to provide for those10 A

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. . . . [The Surviv or 's Act] contemplates compensation to the deceased person ' s estate. It is in the interval between injury and death only that loss can accrue to the estate, and in that alone is the personal representative interested.

. . . The damages for personal injury and the expense of care, nursing, medical attendance, hospital and other proper charges incident to an injury as well as the loss of earnings in the life of the deceased are the los s to his estate and not to [his widow or next of kin]. [ Id. at 471

- 72 (citation omitted) .] "Un der these acts, the [ A ] dministrator A d [ P ] rosequendum is the proper party to bring a lawful death action and a [ G ] eneral [ A ] dministrator is the proper party to institute a survival action." Id. at 473. Notably the Surviv or 's Act includes a provision "to toll any statute of
limitations on a claim belonging to a decedent for up to six months following death for the 'salutary purpose of providing executors and administrators with a limited period of time after death to evaluate potential claims available to the
estate.'" Repko , 464 N.J. Super. at 577 (quoting Warren v. Muenzen , 448 N.J. Super. 52, 67

- 68 (App. Div. 2016 ) (citing N.J.S.A. 2A:14

- 23.1 ) )

. Applying these well settled principals to the facts in the matter before us,

we must reverse the motion judge's determination that the complaint in this matter could have been amended to correct what was obviously plaintiff's lack11 A

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of standing to bring the S urvivor ' s A ction in her capacity as A dministrator A d
P rosequendum. Her reason s for not pursuing letters of general administration are of no moment. Like the complaint filed on behalf of the de ceased plaintiff
in Repk o , here, the filing of the complaint prior to the establishment of an estate was a "nullity." Id. at 573. Any delay caused by a dispute among the heirs or siblings could have been avoided with the filing of an appropriate probate action long before the statute of limitations expired for the filing of the S urviv or 's A ct claim , which as noted provides for a tolling of that time period to allow for such arrangements to be made or issues to be addressed. As we noted in Repko , the "issue

. . . of standing [is] succinctly defined

. . . as ' the legal right to set judicial machinery in motion, ' " id. at 57 4 ( quoting Eder Bros. v. Wine Merch s . of Conn

. , Inc. , 880 A.2d 138, 143 (Conn. 2005) )

. Here, plaintiff did not have th at legal right as to the Surviv or's Act

a ction at the time the complaint was filed and did not acquire it until after the statute of limitations ha d run on the estate's claim under that act. Regardless of the fact that defendants had notice of the claim through service of the original complaint, that pleading remaine d a nullity and could not have been asserted once the st a tute of limitations had run. Although we appreciate the motion12 A

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judge's endeavor to attain an equitable result, the governing law simply does not authorize it.
Reverse d and remanded for entry of an order dismissing the Surviv or 's
Act a ction count of the complaint.