Biancono v Pierre
Annotate this CaseDecided on November 3, 2005
Civil Court of the City of New York, Kings County
Adrian Biancono and JUDITH HOPPES, Plaintiffs
against
Jean Pierre and ABDUL HAI, Defendants
1450/00
Eileen N. Nadelson, J.
Motion for Appointment of a Temporary Administrator
This action arose out of an automobile accident in which Plaintiffs were passengers in Defendant Pierre's taxicab when it allegedly struck Defendant Hai's car. The accident took place on February 10, 1996, and the initial action was filed in the supreme court. The supreme court subsequently transferred the case to the civil court pursuant to the provisions of section 325 (d) of the CPLR.
Defendant Pierre's counsel was the law firm assigned the case from his insurer. Defendant Pierre's only major asset was his taxi medallion which he lost to foreclosure a couple of years after the accident, and Plaintiffs' counsel agreed to limit the recovery to the available insurance coverage.
Prior to the start of the trial, Plaintiffs' counsel informed Defendant Pierre's counsel that it would seek a missing witness charge if Pierre did not appear at trial. To convince the court of the applicability of this jury charge, Plaintiffs' counsel served Defendant Pierre with a subpoena by "nail and mail" method to the address stated in his deposition.
After the trial started, Defendant Pierre's counsel asked Plaintiffs' counsel for the address at which the subpoena was served, said counsel having been unable to contact Defendant Pierre himself. Using that address, Pierre's counsel was still unable to contact his client. He then obtained the services of an investigator who discovered, in less than one day, that Defendant Pierre had died on October 18, 2004, more than a year prior to the start of trial. Defendant Pierre died in Haiti, where he was buried, and left no property or family in the United States.
The investigator appeared in court with the son of Defendant Pierre's girlfriend, and they testified as to Defendant Pierre's death. Plaintiffs' counsel then moved to have Defendant Pierre's counsel be appointed temporary administrator for the limited purpose of continuing the instant [*2]trial. Defense counsel objected, and called for a mistrial.
Recently, this court determined that it has the jurisdiction to appoint a temporary administrator to avoid undue delay when a case is otherwise trial ready. Abecasis v. Fontanazza, 2005 NY Slip Op. 25392, ___ NYS2d ______ (Kings Civ. Ct. 2005). In that decision, however, the court declined to exercise such jurisdiction because at the time the motion was made no notice of trial had been filed and there would have been no undue prejudice to have the matter determined by the Surrogate's Court. The instant situation is clearly distinguishable from the situation in the Abacasis matter.
In the case at bar, the discovery of Defendant Pierre's death occurred after the jury had been sworn and the trial had started. The accident that is the subject of the lawsuit is almost ten years old, and Plaintiffs, residents of Pennsylvania, have traveled to New York exclusively to complete this litigation. Further, the deceased defendant has no assets nor relatives in the United States, and no administrator or executor has been appointed. Under these circumstances, the court is inclined to appoint a temporary administrator for the limited purpose of completing this trial.
Defendant Pierre's counsel has objected to such relief, asserting that this court lacks the jurisdiction to make such appointment and that he is unduly prejudiced by not being able to select a jury who would be informed during the selection process that one of the defendants had passed away. The court disagrees.
As definitively stated in Abecasis v. Fontanazza, Id., the civil court does have the jurisdiction to appoint a temporary administrator for an estate in the interests of the efficient administration of justice. This is a situation in which the court should exercise such powers, to bring to conclusion a trial that has already commenced, particularly in consideration of the age of the case and the inconvenience of Plaintiffs.
Further, the court finds counsel's second contention, that he is unduly prejudiced because the jury was selected without any knowledge that a defendant had died, to be specious. With due diligence, Defendant Pierre's demise could have been discovered well before the jury selection process began. It is uncontroverted that the jury was chosen with all of the parties knowing that Defendant Pierre was missing, which would probably have warranted a missing witness charge. Further, the jury is charged not to render a decision based on sympathy. Therefore, counsel's objection is overruled.
The question now becomes who should be appointed to act as the temporary administrator. Faced with a similar circumstance, the court in Batan v. Schmerler, 155 Misc2d 46, 586 NYS2d 873 (Queens 1992), determined that the appropriate administrator should be the attorney for the deceased defendant. As with the case at bar, the only asset of the estate which the plaintiff sought to recover was the decedent's insurance contract. The court noted that it has been held that where a plaintiff seeks to obtain his recovery only from the defendant's insurance [*3]policy, the action is really between him and the insurer. Gelbman v. Gelbman, 23 NY2d 434, 297 NYS2d 529 (1969). Consequently, the insurer's attorney would be the most appropriate person to appoint as temporary administrator.
The attorneys retained by the insurer to defend this lawsuit, however, is a law firm. Under section 707 of the SCPA,
Letters may issue to a natural person or to a person authorized by law to act
as a fiduciary....
A law firm is not a "natural person" and therefore may not be appointed as an executor or administrator of an estate. In re Estate of Naughton, 87 Misc2d 530, 386 NYS2d 321 (Surr. Orange County 1976). The statute does not specify who must be appointed temporary administrator, and the matter is left largely to the discretion of the court. Matter of Mottek, 6 Misc2d 934, 162 NYS2d 310 (Nassau 1957).
Under the facts of this case, the court believes that the named partners of the retained law firm should be individually appointed as the temporary administrators. Defendant Pierre's counsel has objected, stating that the firm does not consent to such appointment. However, since such appointment is both temporary and limited, and involves no additional burden above that which the firm already assumed as trial counsel, the court will exercise its discretion in appointing such persons.
The court hereby appoints Steven J. Baker, John McEvoy, Colin Morrissey and Ronit Z. Moskovits as guardians to act as temporary administrators of the estate of Jean Pierre, deceased, for the purpose and with the powers limited to defending this action, upon the condition that Plaintiffs stipulate that any recovery against the estate will be limited to the available insurance coverage. The clerk of the court is directed to amend the caption accordingly.
Dated: November 3, 2005
__________________________
EILEEN N. NADELSON, J.C.C.
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