Rostoker v O'Donnell

[*1] Rostoker v O'Donnell 2008 NY Slip Op 50469(U) [19 Misc 3d 1102(A)] Decided on March 12, 2008 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2008
Supreme Court, Kings County

Abraham Rostoker, Plaintiff,

against

Jean N. O'Donnell, Defendant



44894/01

Francois A. Rivera, J.

Defendant moves, pursuant to CPLR §1021, for an order dismissing the plaintiff's complaint for failing to procure the timely appointment of an administrator or representative for the estate of the decedent, Abraham Rostoker. Defendant served deceased plaintiff's attorney.The underlying action is for personal injuries allegedly sustained by the plaintiff on December 9, 1998. Plaintiff commenced this action by filing and service of a summons and verified complaint, dated November 9, 2001. Issue was joined by service of a verified answer dated January 15, 2002. The plaintiff, Abraham Rostoker, passed away on February 1, 2004.

DISCUSSION

CPLR § 1015, states: a) If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.(b) Upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate. The death shall be noted on the record and the action shall proceed.

CPLR §1021, states, in pertinent part:

A motion for substitution may be made by the successors or representatives of a party or by any party... If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however such dismissal shall not be on the merits unless the court shall so indicate... If the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed. [*2]

Pursuant to CPLR §1015, the death of a party stays the action pending the substitution of a legal representative, and the Court is divested of jurisdiction to act rendering any determination made without such a substitution a nullity (CPLR §1015; Matter of Einstoss, 26 NY2d 181 [1970]; Hyman v Booth Memorial Hosp., 306 AD2d 438 [2003]. Although CPLR §1021 is an exception to this principle, the court must first obtain jurisdiction over the persons interested in the decedent's estate by serving them as prescribed in CPLR Article 3 (CPLR §1021; Macomber v Cipollina, 226 AD2d 435 [1996]; Topal v BFG Corp., 108 AD2d 849 [1982]).

Although notice, in the manner prescribed for motion papers, was provided to the law firm which represented the decedent, such service is insufficient to obtain jurisdiction over the persons interested in the decedent's estate (Macomber v Cipollina, supra. 226 AD2d at 435). "Just as the death of a principal ordinarily revokes the authority of the agent, so the death of a party to an action revokes the power of the attorney [CPLR 1015 see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1015:2; see also, Van Campen v. Burns, 54 App Div 86, 89]" Wisdom v. Wisdom, 111 AD2d 13 [1st Dept 1985]. In the instant matter, no persons interested in the decedent's estate were provided any notice of the instant motion.

Defendant's motion is denied with leave to renew by order to show cause in accordance with CPLR §1021.

The foregoing constitutes the decision and order of the court.

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J.S.C.