Byung Chun
Kim, Plaintiff,
against
Robert Smith, Defendant.
|
012794/11
Law Offices of Andrew Park, P.C.
Incoming Attorneys for Plaintiff
450 Seventh Avenue, Suite 1805
NY, NY 10123
(212) 239-3680
Walia & Walia
Outgoing Attorneys for Plaintiff
136-40 39th Avenue, Suite 505
Flushing, NY 11354
(718) 353-4478
DeSena & Sweeney
Attorneys for Defendant
1500 Lakeland Avenue
Bohemia, NY 11716
(631) 360-7333
Randy Sue Marber, J.
Upon the foregoing papers, the Plaintiff's motion seeking an Order: (A) directing
Walia & Walia, PLLC, the Plaintiff's prior counsel, to turn over the Plaintiff's file to
the Law Offices of Andrew Park, P.C.; (B) directing the Clerk of the Court to enter the
Law Offices of Andrew Park, P.C. as the Plaintiff's new attorneys of record; (C) pursuant
to CPLR §§ 1015 and 1021 substituting Eileen M. Roehrig and Robert J.
Smith, as Administrator of the Estate of the Defendant, Robert Smith; (D) pursuant to
CPLR §§ 3024 and 3025 granting Plaintiff leave to amend the caption of this
action to substitute Eileen M. Roehrig and Robert J. Smith, as Administrator of the Estate
of the Defendant, Robert Smith; and (E) lifting the stay necessitated by the death of the
Defendant, Robert Smith, is determined as hereinafter provided.
In this action, the Plaintiff seeks damages for personal injuries alleged to
have been sustained by the Plaintiff in an automobile accident on September 20, 2008.
This action was commenced by the Plaintiff, through his counsel, Walia & Walia,
PLLC, by the filing of a Summons and Verified Complaint in the Office of the Nassau
County Clerk on September 2, 2011. According to the Affidavit of Service of the
Summons and Verified Complaint, filed in the Office of the Nassau County Clerk on
October 5, 2011, the Defendant was served on October 3, 2011 at 3:35 p.m., when the
Summons and Verified Complaint were affixed to the door of the premises located at 157
4th Street, Hicksville, NY 11801. According to the Affidavit of Service, this was the
Defendant's last known address. A copy of the Summons and Verified Complaint were
then mailed to the Defendant at that address. The Affidavit of Service, sworn to on
October 4, 2011 by Syreeta D. Bracken, indicates that after three (3) prior attempts to
serve the Defendant at the address, and there being "no answer", the Summons and
Verified Complaint were affixed to the door of the premises. The affiant further states
that the military status of the Defendant was checked with the neighbor, "John Doe",
who confirmed that the Defendant was not in the service of the United States.
It appears that an Answer, on behalf of the Defendant, was interposed by
DeSena & Sweeney, LLP, dated November 18, 2011, but never filed in the Office
of the Nassau County Clerk. This Answer was verified by Robert P. Sweeney, Esq. The
Verification indicates that the attorney made the verification and not the Defendant in
that the Defendant was not within the County where the attorney had his office.
On or about April 8, 2013, DeSena & Sweeney, LLP filed a motion
(Mot. Seq. 01) seeking an Order pursuant to CPLR § 3126 (3) dismissing the
complaint due to the Plaintiff's failure to appoint an administrator. A Request for Judicial
Intervention (RJI) was filed along with the motion and the matter was assigned to Hon.
Thomas P. Phelan. The Supporting Affirmation of Louis J. DeSena, Esq., dated April 2,
2013, indicates that the Defendant, Robert Smith, died on December 16, 2009. A copy of
the Defendant's death certificate was attached to the motion along with a copy of the
Summons, Verified Complaint and Verified Answer. Also attached to the motion was a
Notice of Death Certificate dated January 12, 2012, a letter dated June 5, 2012 and a
letter dated September 7, 2012, all sent to the Plaintiff's prior counsel, Walia &
Walia, PLLC. Inasmuch as this motion was deemed an initial discovery motion brought
pursuant to CPLR § 3126 (3), it was withdrawn on April 17, 2013 by the Clerk of
the Court and a Preliminary Conference was scheduled for May 21, 2013 pursuant to 22
NYCRR § 202.8 (f). On May 21, 2013, this action was marked "Stayed" as a result
of the recognition of the death of the Defendant. It is well settled that the death of a party
terminates his attorney's authority to act and [*2]stays the
action as to him pending the substitution of a legal representative. (See, CPLR
§ 1015)
Next, on or about May 14, 2013, the Defendant's counsel filed a proposed
Order to Show Cause (Mot. Seq. 02), again seeking an Order pursuant to CPLR §
3126 (3) dismissing the complaint due to the Plaintiff's failure to appoint an
administrator. In a Memo dated May 23, 2013, Hon. Thomas P. Phelan, returned the
Order to Show Cause to the Order to Show Cause Clerk of the Supreme Court, unsigned.
In said Memo, Justice Phelan indicated that "According to the death certificate of the
defendant submitted with this application, the defendant died on December 16, 2009.
This action was not commenced until September 2, 2011, which was after defendant's
death".
Thereafter, on or about October 21, 2013, the Law Offices of Andrew Park,
P.C., filed a motion, (Mot. Seq. 03) as the Attorney for the Plaintiff, seeking an Order:
(A) pursuant to CPLR §§ 1015 and 1021 substituting Eileen M. Roehrig as
Administrator of the Estate of the Defendant, Robert Smith; (B) pursuant to CPLR
§§ 3024 and 3025 granting Plaintiff leave to amend the caption of this action
to reflect the substitution of Eileen M. Roehrig and Robert J. Smith, as Administrator of
the Estate of the Defendant, Robert Smith, the deceased defendant; and (C) lifting or
vacating the stay necessitated by the death of the Defendant, Robert Smith. In his
Affirmation in support of the motion, the Plaintiff's counsel, Scott Edley, Esq., indicated
that on October 9, 2013 the Plaintiff substituted his office for the firm of Walia &
Walia, PLLC. Included as an exhibit was a Consent to Change Attorney form executed
by the Plaintiff.
Mr. Edley, in his Affirmation in support of the Plaintiff's motion (Mot. Seq.
03) also indicated that the Defendant, Robert Smith, died on December 16, 2009. A copy
of the Defendant's death certificate was attached as an exhibit.
In a Short Form Order dated December 16, 2013 and entered on December
18, 2013 by the Nassau County Clerk, Justice Phelan denied the Plaintiff's motion (Mot.
Seq. 03). In his Order, Justice Phelan wrote: "The record reveals that defendant died on
December 16, 2009. Letters of administration were issued on April 14, 2011. This action
was not commenced until September 2, 2011. The motion papers were served upon the
attorneys of record for defendant. There is no indication that any attempt was made to
serve the administrators." Justice Phelan further wrote: "To obtain jurisdiction over the
personal representative, he or she must be served in accordance with CPLR article 3
(citations omitted)" (Horseman
Antiques, Inc. v. Huch, 50 AD3d 963, 964 [2d Dept. 2008]). In the absence of
proper service, no personal jurisdiction was acquired over the administrators; and,
therefore, they cannot be substituted as party defendants (Id.)."
The instant motion (Mot. Seq. 04) next ensued. Aside from the addition of
the request that the Law Office of Andrew Park, P.C. be recognized as the attorneys of
record for the Plaintiff, this motion is essentially the same as the prior motion (Mot. Seq.
03) which was denied by Justice Phelan.[FN1]
In fact, in her Affirmation in Support of this motion, the Plaintiff's counsel states that
"Your affirmant's office previously moved to lift the stay, but that motion was denied
because your affirmant's office mistakenly failed to serve the administrator of defendant's
estate." (See Affirmation of Lana Ahreum Song, Esq., dated October 21, 2014 at
¶ 14) She additionally states that "Plaintiff's office previously moved to lift the stay
but inadvertently failed to serve the [*3]administrator of
ROBERT SMITH's estate. (Id. at ¶ 18)
The Defendant's counsel, Louis J. DeSena, Esq., submits an affirmation in
which he takes no position on the portions of the motion addressed to the transfer of the
file between Walia & Walia, PLLC and the Law Office of Andrew Park, P.C. He
does request that only Robert J. Smith be appointed as Administrator for the purpose of
being substituted for the deceased Defendant, Robert Smith.
In her Affirmation in Reply, Ms. Song indicates that Walia & Walia,
PLLC had, since the filing of the instant motion, executed the Consent to Change
Attorney form and that the Law Office of Andrew Park, P.C. has reimbursed Walia
& Walia, PLLC its disbursements in the amount of $465.82. As such, the branch of
the motion seeking transfer of the file was withdrawn. However, the Plaintiff's counsel
was still seeking the substitution of the Administrator and the lifting of the stay.
Upon reviewing the instant motion, the Court's Principal Law Clerk
contacted
Lana Ahreum Song, Esq., the Plaintiff's counsel, to ascertain whether the
Court was perhaps missing something since it appeared that this action was a nullity,
having been commenced against a dead person. Ms. Song acknowledged that the action
is a nullity but chose not to withdraw the motion and requested that the Court render a
decision.
That "the dead cannot be sued" is a well established principle of the
jurisprudence of this state (See Marte v. Graber, 58 AD3d 1 [1st Dept. 2008] ). It gives rise
to the rule that a claimant may not bring a legal action against a person already deceased
at the time of the commencement of such action, but instead, must proceed against the
personal representative of the decedent's estate (See Jordan v. City of New York, 23 AD3d 436 [2d Dept.
2005]; see also Outing v. Mathis, 304 AD2d 670 [2d Dept. 2003]).
Distilled from these concepts is the rule that no action may effectively be
commenced against a deceased person subsequent to his or her death and prior to the
appointment of a personal representative (see Arbalez v. Chun Kuei Wu, 18 AD3d 583 [2d Dept. 2005];
Laurenti v. Teatom, 210 AD2d 300 [2d Dept. 1994]; Dime Sav. Bank of New
York FSB v. Luna, 302 AD2d 558 [2d Dept. 2003]). The death of a named
defendant prior to the commencement of an action has thus been held to render the
action, insofar as asserted against the deceased defendant, a legal nullity from its
inception which leaves the Court without jurisdiction to grant any requested relief (see Rivera v. Bruchim, 103 AD3d
700 [2d Dept. 2013]; Wendover Fin. Serv. v. Ridgeway, 93 AD3d 1156 [4th
Dept. 2012]; Marte v.
Graber, 58 AD3d 1, supra; Deutsche Bank Natl. Trust v. Torres, 24 Misc 3d 1216[A],
2009 WL 2005599 [Suffolk County, Sup.Ct. 2009]; cf., GMAC Mtge. Corp. v.
Tuck, 299 AD2d 315 [2d Dept. 2002]).
It clearly appears that Justice Phelan, both in his Memo to the Order to Show
Cause Clerk regarding Motion Sequence 02 and in his Short Form Order dated
December 16, 2013, deciding Motion Sequence 03, pointed out that the Defendant,
Robert Smith, died before this action was commenced. In his December 16, 2013 Short
Form Order, Justice Phelan ruled that jurisdiction over the personal representative could
not be acquired. Apparently, counsel appearing in this matter were unaware of the
commonly accepted rule of law that the "the dead cannot be sued" although they knew
that the Defendant died before the action was commenced as neither the Plaintiff's nor
the Defendant's counsel ever raised this issue.
Accordingly, it is hereby
ORDERED, that the Plaintiff's motion is DENIED and this
action is DISMISSED as it is a nullity.
This constitutes the decision and order of the Court.
DATED:Mineola, New York
January 5, 2015
___________________________
Hon. Randy Sue Marber, J.S.C.
XXX
Footnotes
Footnote 1:This matter was
reassigned to this Court due to Justice Phelan only hearing Article 81 matters.