This Order to Show Cause was brought on by the Cochran Law Firm on behalf of the Estate of Evelyn McIntosh for an Order pursuant to CPLR§1015 substituting Lloyd McIntosh as administrator of the estate; vacating plaintiff's default in appearing on April 6, 2011 for a Preliminary and/or Final Conference and restoring the case to the calendar; substituting the Cochran Firm in place of Joshua A. Schulman, LLC, as counsel for plaintiff, and directing the file be turned over to the incoming attorneys. Defendant opposes the motion. Attorney Joshua A. Schulman also submits partial opposition to the motion.

NOW, upon the foregoing and oral argument on October 6, 2011 and due deliberation had thereon, the motion is GRANTED in accordance with this Decision.

This is an action sounding in medical malpractice and for lack of informed consent, and claiming violations of the Public Health Law arising from alleged nursing home negligence upon decedent, Evelyn McIntosh, during her residency at Crown Nursing And Rehabilitation Center from April 16, 2008 until June 22, 2008.

On October 17, 2006, Mrs. McIntosh executed a general power of attorney to Lloyd McIntosh, her son. On or about July 3, 2008, Mr. McIntosh consulted with and retained attorney Joshua Schulman to represent the interests of his mother against the defendant nursing home. Shortly thereafter, on September 4, 2008, Mrs. McIntosh passed away. Mr. Schulman, not hearing from his client for two years, or knowing that Mrs. McIntosh had died, filed a summons and complaint on September 21, 2010, which was served on defendant on October 12, 2010.

Mr. Schulman learned that Mrs. McIntosh had died when his firm was served with Crown Nursing's motion, dated November 24, 2010, to dismiss for lack of capacity. On December 9, [*2]2010, Mr. Schulman met with Mr. McIntosh who confirmed that his mother had died in 2008 and advised that he did not want to continue the action. Mr. McIntosh signed a Stipulation of Discontinuance With Prejudice dated December 9, 2010, which Mr. Schulman forwarded to defendant. On December 13, 2010, defendant withdrew its motion and the Stipulation of Discontinuance was filed.

Unbeknownst to Mr. Schulman, in June 2010, Mr. McIntosh began consulting with attorneys at The Cochran Law Firm about the same claims that formed the subject of the action. Additionally, Mr. Schulman affirms that he did not know that Letters of Administration had been filed for and obtained on behalf of Mr. McIntosh by the Cochran Firm. Indeed, Letters of Administration were issued to Mr. McIntosh on October 5, 2010.

Defendant argues that this action was discontinued with prejudice by virtue of the Stipulation of Discontinuance that was signed voluntarily by Mr. McIntosh and his attorney. It argues that the fact that Letters of Administration were issued after the lawsuit was commenced demonstrates that Mr. McIntosh lacked capacity to bring this action when it was filed.

Despite the filing of the Stipulation, a preliminary conference was scheduled by the court, for January 27, 2011. The parties state in their papers that the court was advised of the discontinuance; notwithstanding, discovery conferences continued to be calendared. As a result of the continued non-appearance of the parties, the case was marked disposed.

The moving party seeks herein to, in effect, have this court deem the Stipulation of Discontinuance dated December 9, 2010 a nullity and vacate the default in reference to the court scheduled conferences. Further, the movant seeks to substitute Lloyd McIntosh, as administrator, in the place and stead of Mrs. McIntosh.

The movant's request to substitute the Cochran Law Firm in place and stead of Joshua A. Shulman as attorney for plaintiff is rendered moot as a Consent to Change Attorney was signed, by those involved, on August 18, 2011.

An attorney in fact is merely a special kind of agent and ordinarily the power of attorney is revoked by the death of the principal. Etterle v. Excelsior Ins. Co. of New York, 74 AD2d 436 (1980); Matter of Cooper, 283 NY 68 (1940). Upon the death of the decedent, the proceedings are stayed by the Supreme Court until the appointment of a personal representative for the estate. See CPLR 1015[a]; Rumola v. Maimonides Med. Ctr., 37 AD3d 696 (2d Dept. 2007); Gonzalez v. Ford Motor Co., 295 AD2d 474, 475 (2d Dept 2002); Reed v. Grossi, 59 AD3d 509, 511 (2d Dept. 2009); Singer v. Riskin, 32 AD3d 839 (2d Dept. 2006). Furthermore, it is axiomatic that "[t]he death of a party divests the court of jurisdiction to conduct proceedings in an action, the action is stayed as to him or her pending substitution of a legal representative, and any determination rendered without such a substitution is generally deemed a nullity." Sample v Temkin, 87 AD3d 686 (2d Dept. 2011) citing, Stancu v Cheon Hyang Oh, 74 AD3d 1322, 1322-1323 (2d Dept. 2010); see CPLR 1015, 1021; Manto v Cerbone, 71 AD3d 1099, 1100 (2d Dept. 2010); Reed v Grossi, supra at 511; Hicks v Jeffrey, 304 AD2d 618 (2d Dept. 2003). In furtherance of this principle and directly on point herein, the Second Department in Reed v. Grossi held that a so-ordered stipulation which, in effect, directed the dismissal of the complaint was a nullity and without any force or effect because it was made without a substitution. Supra at 511; See also, Singer v. Riskin, supra at 840; Lewis v. Kessler, 12 AD3d 421, 422 (2d Dept 2004). [*3]

Moreover, "(a) motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction" over the deceased party's personal representative, and such a motion "is not a mere technicality." Bossert v. Ford Motor Co., 140 AD2d 480 (2d Dept 1988); Singer v. Riskin, supra. at 840.

Here, the death of Mrs. McIntosh revoked the power of attorney conferred upon her son by such document. Therefore, he had no authority to discontinue the action. Mr. Schulman could not act on behalf of the plaintiff nor discontinue the action without a substitution, just as the court had no jurisdiction to accept such an instrument. Any action taken by counsel on behalf of a deceased party is of no force or effect (Macomber v. Cipollina, 226 AD2d 435 (2d Dept. 1996) and, thus, the Stipulation of Discontinuance with Prejudice, signed on December 9, 2010, is a nullity. The case was, in reality, stayed due to the plaintiff's death and, all proceedings, including the scheduled conferences were to have been marked stayed pending substitution.

It must be noted that although all proceedings are rendered null without a substitution, the same does not hold as to the action itself. Although the plaintiff lacked the capacity to sue at the time that the action was filed, the action was nonetheless commenced and cannot be considered a nullity. See, Carrick v. Central Gen. Hosp., 51 NY2d 242 (1980). Furthermore, plaintiff cured the defect in capacity to sue by the issuance of letters of Administration and the motion for substitution herein. See, Seidensticker v. Huntington Hosp., 194 AD2d 718 (2d Dept.1993); Burwell v. Yonkers General Hosp., 6 AD3d 478 (2d Dept. 2004).

With regards to substitution of the plaintiff, CPLR § 1015(a) states that "(i)f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." Additionally, CPLR §1021 "requires a motion for substitution to be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has merit." McDonnell v. Draizin, 24 AD3d 628 , 628-629 (2d Dept. 2005); Suciu v. City of New York, 239 AD2d 338 (2d Dept. 1997); Mansfield Contr. Corp. v. Prassas, 183 AD2d 878 (2d Dept. 1992).

To this end, the movant herein submitted an affirmation from a doctor Board Certified in Internal Medicine and Geriatric medicine. The expert opines that the care plan for Mrs. McIntosh was inadequate and was not updated as her health conditions changed, resulting in scabies and exacerbation and infection of decubitus ulcers. The expert also opines that defendant violated a number of sections of the Public Health Law. The court notes that any delay in moving for substitutions was not attributable to the respective offices. Additionally, the papers submitted by all parties relay the fact that the attorneys for the parties were not apprised of the totality of circumstances and that vital information was not provided to the attorney originally retained in this matter. There is also no prejudice to the defendant as they have had notice of the facts underlying the action and the defects with regards to plaintiff's capacity have been expeditiously remedied.

In light of these circumstances, the plaintiff is hereby substituted by Lloyd McIntosh, as administrator of the estate. The caption is amended as follows: ———————————— 1;————————————&# 151;—————-

x

LLOYD McINTOSH, as administrator of the Estate

of EVELYN McINTOSH, [*4]

Plaintiff,

-against-Index No. 23294/10

CROWN NURSING AND REHABILITATION

CENTER,

Defendant ———————————— 1;————————————&# 151;—————

This constitutes the decision, opinion and order of this court.

Enter,



J.S.C.