Cangemi v Russomanno

[*1] Cangemi v Russomanno 2006 NY Slip Op 51530(U) [12 Misc 3d 1191(A)] Decided on August 3, 2006 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2006
Supreme Court, Kings County

Giacomo Cangemi, Plaintiff,

against

Diane Russomanno, Both Individually and d/b/a Knowledge Booster, Ltd., Jerome J. Cohen, and Knowledge Booster, Inc., Defendants.



45981/01



Plaintiff Attny: Howard Stern

Defendant's Attny: Daniel Tanenbaum

Yvonne Lewis, J.

Plaintiff, Giacomo Cangemi (hereinafter "Cangemi") initiated this action for breach of contract, misappropriation, unjust enrichment, misrepresentation, tortious interference with contract, fraud and fraudulent transfer. Cangemi's Summons and Complaint are dated November 12, 2001. On March 11, 2002, the named Defendants, by their attorneys, raised an affirmative defense, in their first answer, of lack of in-personam jurisdiction over Defendant Jerome J. Cohen for non-service of the summons and complaint upon that Defendant by either personal or substituted service. Following the death of Jerome J. Cohen on or about May 24, 2004, Cangemi moved this Court on June 27, 2005, to substitute H. Jason Cohen, as Executor of the Estate of Jerome J. Cohen, deceased, as party Defendant in the place of Jerome J. Cohen pursuant to CPLR § 1015. Incidentally, Cangemi claims having first moved to substitute the decedent's representative in the place of Jerome J. Cohen in March of 2005, and that that motion was withdrawn in May 2005, because of a good faith error in which the Estate itself had not been actually served, although the Executor had submitted a responsive affidavit in relation to the same.

Defendants Diane Russomanno, individually and d/b/a Knowledge Booster, Ltd., Jerome J. Cohen, and Knowledge Booster, Inc., pray for this Court to dismiss Cangemi's motion, inter alia, for the Court's lack of jurisdiction over the person of Jerome J. Cohen by reason of non-service of the summons and complaint upon that defendant by either personal or substituted service. By its verified answer to defendants' counterclaim, Cangemi did not address the issue of non-service or improper service. Therefore, this Court must determine the issue of whether the lack of personal jurisdiction defense over Jerome J. Cohen is valid in appropriation with CPLR § 3211.

Based on the facts presented before this Court, no Affidavit of service by mail or other proof of service contradicts Defendants' affirmative defense. Pursuant to the CPLR §306 (d), "proof of service shall be in the form of a certificate if the service is made by a sheriff or other authorized public officer, in the form of an affidavit if made by any other person, or in the form of a signed ackowledgement of receipt of a summons and complaint, or summons and notice or notice of petition ." In addition, pursuant to CPLR R 2103 (b), "papers to be served upon a party [*2]in a pending action shall be served upon the party's attorney." However, "if a party has not appeared by an attorney or the party's attorney cannot be served, service shall be upon the party," CPLR R 2103( c). Here no indication was presented as to service upon Jerome J. Cohen, and no indication was presented as to Cangemi's inability to serve either defendant or his attorney, if he had one. However, an objection that the summons and complaint were not properly served "is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the answer, unless the court extends the time upon the ground of undue hardship." CPLR § 3211 (e).

CPLR 3211(e) requires that a CPLR 3211(a)(8), lack of personal jurisdiction, objection be raised by motion within sixty days after serving the first answer. Here, the summons and complaint were dated November 12, 2001. There is no indication as to when service thereof was made. The verified answer, counterclaim, and affirmative defenses, asserted by the defendants, were filed on March 11, 2002 and contained the claim of lack of in-personam jurisdiction. No motion was interposed therefor with in the ensuing sixty days of said answer. In addition, there was no showing of "undue hardship" by the Defendants which would justify an extension of the CPLR § 3211(e) statutory period.

In Anderson v. Shemtob, 70 NY2d 689 (1987), an action for specific performance for the sale of real property, the defendants first moved to dismiss the action based on plaintiff's failure to state a cause of action. Following the plaintiff's amended complaint, the defendants then asserted in their answer to the amended complaint the affirmative defense of lack of personal jurisdiction pursuant to CPLR 3211(a)(8). However, the Supreme Court held, as was affirmed by the New York Court of Appeals, that under CPLR 3211(e) the defendants waived such defense because they had not raised it in their earlier CPLR 3211 motion to dismiss the action. "The defense of lack of personal jurisdiction [is waived if not raised within sixty days of the time of the first answer to the summons and complaint and also] is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection,'" and "there is no reason to depart from the statute's plain language." Id. at 794.

Here, the defendants did raise the defense of lack of personal jurisdiction under 3211(e) in their answer to the plaintiff's complaint and summons. However, no motion in support of such allegation was presented to the court within the sixty days after raising such defense pursuant to the statutory period under CPLR § 3211(e).Following the death of Jerome J. Cohen, Cangemi moved this court, on June 27, 2005, to substitute the decedent's estate by his son, the executor of his estate, H. Jason Cohen pursuant to CPLR § 1015. On April 14, 2006, Cangemi, by his attorney, filed a memorandum of law in support of his motion substituting H. Jason Cohen, Executor, as party defendant for Jerome J. Cohen, deceased defendant. Cangemi prays this Court to grant the motion for substitution of the Estate of the deceased defendant because the motion was made in a timely manner pursuant to CPLR § 1015, in the interests of justice, and as a matter of public policy. In support of that assertion, Cangemi relies on Orellana v. Malek, 497 NYS2d 412 {116 AD2d 557} (1986). In Orellana, defendant appealed from an order denying his motion to dismiss the complaint for failure to substitute the deceased plaintiff's estate within a reasonable time. The Appellate Division, Second Department, held that since the motion to dismiss was made within one year of the plaintiff's death, and there was no showing of prejudice to appellant, appellant's motion was [*3]properly granted.

In response to Cangemi's motion to substitute, the Defendants, by their attorney, filed an Affirmation In Opposition to Cangemi's motion, dated August 4, 2005, requesting the Court to deny such motion. Defendants allege the motion for substitution was filed more than one year after the death of Jerome J. Cohen on May 24, 2004. Further, defendants allege that allowing such motion to substitute would be "futile and highly prejudicial and would cause a significant financial burden for the Estate of the deceased defendant." Defendants allege that the Estate "may have assets of approximately $47,000" while the debts of the Estate exceed such amount.

However, whether the Estate has sufficient assets to cover the debts it owes is of no great concern to this Court at this moment, for the issue here is whether the substitution of H. Jason Cohen is legally possible, not if any potential judgment will be collectable.

CPLR §1015(a) states 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." "Even if a cause of action survives the death of a party as a matter of substantive law, such death divests the court of jurisdiction until a duly appointed personal representative is substituted for the deceased party." Silvagnoli v. Consolidated Edison Employees Mut. Aid Soc., 492 NYS2d 619, 620 (1985).

In Topal v. BFG Corporation, 485 NYS2d 352 {108 AD2d 849} (1985), plaintiff's claims were for breach of contract and injury to property against a corporate and an individual defendant. At the death of the individual defendant, plaintiff moved, pursuant to CPLR 1015(a), to substitute the decedent's administratrix as a party defendant in the action. The court found that the case was a proper one for substitution of the administratrix of the decedent's estate as a party defendant since the plaintiff's claims, the nature of breach of contract and injury to property, "were not extinguished by reason of [individual defendant's] death, and the action could therefore continue against the personal representative of the decedent." However, the court held that in that instance, "plaintiff's motion for substitution was properly denied because service of motion of substitution was not properly made pursuant to CPLR article 3." Id. at 350-51. It is "necessary that the representative be served with process and accorded all the procedural safeguards required by due process of law' before the court may enter a binding judgment against him." Id. at 354.

In Giroux v. Dunlop Tire Corp., NYS2d 769, at the death of the plaintiff, plaintiff's attorney sought to substitute the decedent's administrator as plaintiff to the lawsuit nearly three years after the death occurred. The court found that "plaintiff's attorney failed to seek substitution within a reasonable time' after plaintiff's death." Id. at 770.

Similarly to Orellana, here there has been no showing of prejudice to the defendants. Also, as in Topal, plaintiff's claims were not extinguished by reason of Jerome J. Cohen's death, and the action could continue against the executor of the decedent's estate given the nature of the claims asserted, i.e., breach of contract, misappropriation, unjust enrichment, misrepresentation, tortious interference with contract, fraud and fraudulent transfer. However, even though the court in Giroux did not elaborate on whether there was any prejudice involved, it found three years to be long enough to deny substitution. Unlike Giroux, here the time is nearly 13 months, not close to the three years period. Therefore, with no showing of prejudice, 13 months is a reasonable time under the circumstances.

Even though the defendants did raise the lack of personal jurisdiction defense in their first [*4]answer to plaintiff's complaint, they did not file a motion in support of such defense within the sixty days requirement under CPLR § 3211(e) after raising such defense. As to the timeliness of the motion for substitution, this court finds that a nearly 13 months period after the death of Jerome J. Cohen, with no showing of prejudice, is not unreasonable under the circumstance.

WHEREFORE, on the basis of all of the ongoing, plaintiff's motion for substitution is granted. Defendants' motion for dismissal for lack of in-personam jurisdiction as to Jerome J. Cohen is denied. This constitutes the decision and order of this Court.

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JSC