Supreme Court, Kings County, October 30, 2023

Dalli & Marino, LLP, Mineola (Marie Costello of counsel), for plaintiff.

Caitlin Robin & Associates PLLC, New York City, for Michael Tenenbaum and another, defendants.

Rubin Paterniti Gonzalez Rizzo Kaufman LLP, Garden City, for North Shore-Long Island Jewish Health System, Inc. and another, defendants.

Order to show cause filed on June 21, 2023, under motion sequence number four, by Svetlana Yesilevich, as Administrator of the estate of Semyon Shoykhet (hereinafter the plaintiff), for an order: (1) removing defendants Michael Tenenbaum (hereinafter the decedent), Peninsula Hospital Center and New York Presbyterian Hospital from the caption, (2) lifting the stay, and (3) placing the action on the active calendar. The motion is unopposed.

Background

On April 27, 2011, plaintiff commenced the instant action by a summons and complaint. On June 3, 2011, plaintiff filed a supplemental summons and amended verified complaint. On July 19, 2011, defendant Peninsula Hospital Center interposed an answer to the amended verified complaint. On June 2, 2011, defendant North Shore-Long Island Jewish Health System, Inc. and Forest Hills Hospital interposed a joint answer to the amended verified complaint.{**82 Misc 3d at 543} On May 16, 2011, defendant New York Presbyterian Hospital interposed an answer to the amended verified complaint. On November 7, 2011, defendant Resort Nursing Home and Michael Tenenbaum interposed a joint answer to the amended verified complaint.

On May 26, 2015, plaintiff made an unopposed motion to sever defendant Peninsula Hospital from the instant action due to a bankruptcy filing.

By order dated July 31, 2015, the court granted plaintiff's May 26, 2015 motion, and severed Peninsula Hospital from the instant action.

On October 15, 2015, defendant New York Presbyterian Hospital made a motion to dismiss all claims and cross-claims asserted against it.

By order dated December 15, 2015, the court granted defendant New York Presbyterian Hospital's October 15, 2015 motion and dismissed the complaint and all cross-claims asserted against New York Presbyterian. The order is annexed as exhibit G to the instant motion.

On December 5, 2017, the instant action was stayed due to the death of defendant Michael Tenenbaum.

On March 18, 2022, the plaintiff, defendant Resort Nursing Home and Forest Hills Hospital executed a stipulation discontinuing this action as against Michael Tenenbaum, lifting the stay and restoring this matter to the active calendar. The stipulation is annexed as exhibit K to the instant motion.

On October 5, 2022, this court issued an order which declined to so-order the March 18, 2022 stipulation and directed that the parties make a motion for the relief requested therein. The instant motion is made in compliance with the court's direction.

Law and Application

By order dated December 15, 2015, the court granted defendant New York Presbyterian Hospital's October 15, 2015 motion for an order dismissing all claims and cross-claims as against it. Accordingly, the branch of the plaintiff's application seeking to amend the caption to remove defendant New York Presbyterian Hospital from the caption is granted.

By order dated July 31, 2015, the court granted plaintiff's May 26, 2015 motion for an order to sever defendant Peninsula Hospital from this action due to a bankruptcy filing. Accordingly, the branch of the plaintiff's application seeking to amend the caption to remove defendant Peninsula Hospital from the caption is granted.

On March 18, 2022, the plaintiff, defendant Resort Nursing Home and Forest Hills Hospital executed a stipulation discontinuing this action as against Michael Tenenbaum, lifting the stay and restoring this matter to the active calendar.{**82 Misc 3d at 544}

On October 5, 2022, this court issued an order which declined to so-order the March 18, 2022 stipulation. It advised the parties that the relief request may only be pursued through a motion and not by stipulation.

Law and Application

The plaintiff has made an unopposed motion to strike certain defendants from the caption. The motion is granted without the need for further discussion as against defendants New York Presbyterian Hospital and Peninsula Hospital. The motion to strike the decedent Michael Tenenbaum is different. Plaintiff in effect is seeking to discontinue the action against this decedent with prejudice and with the consent of all parties remaining in the action, because this party died after issue was joined.

The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a) (Medlock v Dr. William O. Benenson Rehabilitation Pavilion, 167 AD3d 994, 995 [2d Dept 2018]). If a party dies and the claim for or against him or her is not thereby extinguished the court shall order substitution of the proper parties (CPLR 1015 [a]).

The plaintiff and all remaining defendants do not oppose the plaintiff's request to discontinue the action against the decedent with prejudice pursuant to CPLR 3217 (b). The central question is whether a representative of the estate of the decedent must be appointed before the action can be discontinued against the decedent or can this requirement be obviated by all parties stipulating to discontinue with prejudice all claims asserted against the decedent.

The court, in its sound discretion, has the authority to grant or deny an application to discontinue an action made pursuant to CPLR 3217 (b) (Tucker v Tucker, 55 NY2d 378 [1982]). In the absence of special circumstances, such as prejudice to the substantial rights of other parties to the action, a motion for a voluntary discontinuance should be granted (see Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32 [1st Dept 2001]; Citibank v Nagrotsky, 239 AD2d 456, 457 [2d Dept 1997]). Although CPLR 3217 (b) authorizes a voluntary discontinuance by court order on motion of a party asserting a claim, this provision may not be the basis for a dismissal motion by a party defending a claim unless the party asserting the claim consents or joins in the motion (Shamley v ITT Corp., 67 NY2d 910 [1986]).{**82 Misc 3d at 545}

The language of CPLR 3217 (b) does not allow the court to disregard CPLR 1015 (a), which provides, if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties (Bryan v Moor, 65 Misc 3d 649 [Sup Ct, Suffolk County 2019]).

The court has reviewed case law on this discrete issue going back over 100 years. There is precedent for the proposition that a plaintiff who wishes to discontinue an action against a defendant decedent may do so without the consent of the decedent's representative. The representatives of a sole defendant, deceased after issue joined and before verdict, cannot have an order requiring the plaintiff to continue the action against them, but he has his election to discontinue (Keene v La Farge, 16 How Prac 377 [Super Ct 1858]). It had been held that on the death of a sole defendant, before any interest had accrued to him, the action could only be continued at the option of the plaintiff (Lyon v Park, 111 NY 350, 357 [1888]). These cases stand for the proposition that a plaintiff may discontinue an action against a deceased defendant without the consent of the representative of the decedent's estate. However, in the matter of Livermore v Bainbridge (49 NY 125, 126-127 [1872]), the Court refined that holding, such that the right of plaintiff to discontinue against a defendant who has died after joinder of issue but before a verdict exists only where the defendant decedent has not interposed a counterclaim. Under those circumstances, plaintiff could not take a rule to discontinue against a deceased defendant (id.). The deceased defendant's position under the counterclaim is that of plaintiff, with all its privileges (id.).

Carrying that analysis forward, the conclusion is rather simple and involves a two-prong analysis. The first prong is to determine whether the granting of the discontinuance will leave no possible claim remaining against the decedent or the decedent's estate. If no possible claim survives against the decedent, then the analysis moves to the next prong. The next prong is whether the decedent's answer to the complaint included a counterclaim or a cross-claim against any party or whether the decedent has pleaded any cause of action for relief in the instant action. If no claim remains against the decedent and the decedent has not pleaded any claim for affirmative relief, then the plaintiff's motion to discontinue the action against the decedent with prejudice may be granted so long as no other party has asserted a claim against the decedent. There{**82 Misc 3d at 546} is no dispute that the decedent interposed an answer in the instant action before he passed away. Decedent's answer did not assert any counterclaims or cross-claims.

The answer of defendant Peninsula Hospital Center did not assert any counterclaims or cross-claims. The joint answer of defendants North Shore-Long Island Jewish Health System, Inc. and Forest Hills Hospital asserted one cross-claim for common-law indemnity or contribution against New York Presbyterian Hospital. The answer of defendant New York Presbyterian Hospital asserted one cross-claim for common-law indemnity or contribution against North Shore-Long Island Jewish Health System, Inc., Forest Hills Hospital, and the decedent.

The only defendant who has asserted a claim against the decedent was New York Presbyterian Hospital. However, the plaintiff's claims against that defendant were dismissed and consequently its cross-claims for common-law indemnity and contribution are no longer viable.

Under these circumstances, there is no need to have a representative of the decedent appointed to obtain that representative's consent for the plaintiff to discontinue the action against the decedent with prejudice. Plaintiff's motion is deemed to be a motion to discontinue the action against the decedent pursuant to CPLR 3217 (b). The motion is granted. Consequently, the branch of the plaintiff's motion seeking to strike the decedent's name from the caption is granted and the automatic stay of the action triggered by the decedent's death is hereby lifted.

The new caption as amended is as follows:

—————————————————————————————————————-X

SVETLANA YESILEVICH, as Administrator of

the estate of SEMYON SHOYKHET

PlaintiffIndex No. 9591/2011

-against-

NORTH SHORE LONG ISLAND

JEWISH HEALTH SYSTEM, INC.,

RESORT NURSING HOME,

FOREST HILLS HOSPITAL

Defendants

—————————————————————————————————————-X{**82 Misc 3d at 547}

Conclusion

The branch of the motion by Svetlana Yesilevich, as Administrator of the estate of Semyon Shoykhet, for an order removing defendants Michael Tenenbaum, Peninsula Hospital Center and New York Presbyterian Hospital from the caption is granted.

The branch of the motion by Svetlana Yesilevich, as Administrator of the estate of Semyon Shoykhet, for an order lifting the stay of the action is granted.