Ramirez v Zalak

[*1] Ramirez v Zalak 2006 NY Slip Op 50160(U) [10 Misc 3d 1080(A)] Decided on February 6, 2006 Supreme Court, Kings County Kurtz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 6, 2006
Supreme Court, Kings County

Gilbert Ramirez, Plaintiff,

against

Stanley Zalak and Jeanette Zalak, Defendants.



1190/05

Donald Scott Kurtz, J.

Plaintiff moves to substitute The Estate of Stanley Zalak in the place and stead of defendant Stanley Zalak, deceased; to appoint defendant's attorney as Temporary Administrator for the Estate of Stanley Zalak for the purpose of defending this action; to substitute defendant's attorney as Temporary Administrator for the Estate of Stanley Zalak; and to amend the caption accordingly.

Plaintiff maintains that he suffered personal injuries when a vehicle owned by Stanley Zalak and driven by Jeanette Zalak struck his bicycle on September 11, 2003. This action was purportedly commenced by the filing of the summons and complaint on January 13, 2005. It is unclear from the moving papers upon whom, if anyone, and when the summons and complaint were served. On or about March 16, 2005, plaintiff's attorney was informed that defendant Stanley Zalak had passed away on September 23, 2004 and that an estate representative had not yet been appointed. On August 26, 2005, Jeanette Zalak's attorney filed an answer on her behalf only.

Section 1015(a) of the CPLR provides that "if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." CPLR §1015(a). "A motion for substitution may be made by the successors or representatives of a party or by any party." CPLR §1021.

Plaintiff argues that the death of Stanley Zalak does not terminate the action, only the time in which to serve his representative. However, "a plaintiff is unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate." Arbelaez v. Chun Kuei Wu, 18 AD3d 583 (2d Dept 2005) quoting Laurenti v. Teatom, 210 AD2d 300 (2d Dept 1994). Here, plaintiff filed the summons and complaint after the death of Stanley Zalak. Accordingly, an action, insofar as asserted against Stanley Zalak is a nullity. See Id.

Moreover, CPLR §1015 provides for substitution of a party where an action has already been commenced. This statute is inapplicable here because plaintiff has not properly commenced an action against Stanley Zalak and, therefore, there is no party for whom substitution may be made.

With respect to whether the Supreme Court, in a proper case, has the power to appoint a temporary administrator for a deceased party, the Supreme Court is a court of general jurisdiction and may exercise jurisdiction in many matters where the Surrogate's Court also has jurisdiction. See Harding v. Noble Taxi Corp.,155 AD2d 265 (1st Dept 1989); Aptacy v. H.J. Giorgi, Inc., 124 Misc 2d 175,177 (Sup Ct 1984). The Supreme Court has the power to appoint a guardian to serve as temporary administrator and also has broad discretion to act in matters involving substitution. See Id. Moreover, in certain circumstances the attorney for a deceased [*2]defendant may be an appropriate candidate for appointment as a temporary administrator. See Batan v. Schmerler, 155 Misc 2d 46 (Sup Ct 1992); cf Gelbman v. Gelbman, 23 NY2d 434 (1969).

Accordingly, plaintiff's motion is denied in its entirety.

The foregoing shall constitute the Decision and Order of the Court.

Dated: February 6, 2006

DONALD SCOTT KURTZ

Justice, Supreme Court