On March 27, 2024, Joshua Cohen and Jesse Wang won a motion to dismiss for lack of legal capacity as to all claims brought against a major New York hospital system. The plaintiff, as the “Proposed” Guardian of an incapacitated individual, brought malpractice claims based on the failure to implement fall and pressure injury precautions, allegedly causing brain injury and decubitus ulcers. Citing McReynolds v Broderick, 278 AD2d 6 (1st Dept 2000), the Court found the action jurisdictionally defective from the date of filing. The Court also found that while plaintiff eventually obtained Guardianship after the action was commenced, the legal defect could not be cured through a subsequent remedy.  It was legally improper at the time it was filed.  This decision is notable as some trial courts have allowed a plaintiff to cure an improperly commenced action without a proper plaintiff by remedying the flaw during the pendency of the action.  Here, the trial Court correctly found the plaintiff did not have capacity to sue when the action was commenced and dismissed the Complaint.  This dismissal is similar to “Proposed” Administrators lacking capacity to bring suit.