Crockett v New Way Constr., Inc.

[*1] Crockett v New Way Constr., Inc. 2009 NY Slip Op 52550(U) [25 Misc 3d 1242(A)] Decided on December 16, 2009 Supreme Court, Bronx County Hunter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2009
Supreme Court, Bronx County

James Crockett, Plaintiff,

against

New Way Construction, Inc. and 165th Street Realty Corp., Defendants.



6808/04



Attorney for Plaintiff: Howard E. Shafran, Esq.

Attorney for Defendant: Nicole Y. Brown, Esq.

Alexander W. Hunter, J.

The motion by counsel for plaintiff, who is deceased, for an order appointing Sophia Williamson and Martha Williams, decedent's sisters, as joint administrators of the estate of James Crockett, in order to effectuate a settlement in this action, is granted.

The cause of action is one for personal injuries sustained by the plaintiff on August 23, 2002 during his use of a crane to remove boulders at 438 East 166th Street in Bronx County. It is alleged that he suffered a crush type injury to his right ring finger.

Plaintiff allegedly died of heart failure on or about June 6, 2005. Plaintiff previously moved to have the decedent's sisters appointed as temporary administrators to effectuate a proposed settlement of $7,500. However, the motion was denied without prejudice as plaintiff had submitted paperwork indicating that one of plaintiff's sisters executed the necessary documents to have limited letters of administration issued to the New York County Public Administrator in July of 2007. However, plaintiff's counsel did not detail what efforts were made to determine whether or not the New York County Public Administrator was, in fact, appointed as the administrator of the plaintiff's estate.

Plaintiff now renews the motion and submits a letter from the Surrogate's Court of New York County which indicates that an examination of the Surrogate's Court records was made on September 17, 2009 and no record was found for the estate of James Crockett. (Exhibit C). Plaintiff's counsel asserts that the decedent's sisters have consented and are ready to execute releases to finalize the $7,500 proposed settlement. Plaintiff's counsel asserts that there are no [*2]other distributees of the decedent that are known to exist and be alive. With respect to a previous allegation that the decedent may have four (4) children, he contends that they may or may not be in jail, may or may not be in the country and may or may not be his actual children. Therefore, since no other appointment was made, plaintiff's counsel asks that this court appoint Sophia Williamson and Martha Hudson as joint administrators of the estate of James Crockett so that they may effectuate a settlement in this action.

Defendants submit a partial opposition to the motion on the ground that before any settlement proceeds can be released, they must be assured that the administrators have been properly appointed for plaintiff's estate and substituted in place of the deceased plaintiff in this action. Defendants' counsel asserts that her understanding is that the Surrogate's Court is the proper vehicle for appointing an administrator and as long as this court is authorized to appoint the plaintiff's sisters as administrators, then defendants have no objection to the relief requested.

In Harding v. Noble Taxi Corp, 155 AD2d 265 (1st Dept. 1989), the Appellate Division, First Department stated,

"...we note that there is no merit to objections by defendants with respect to plaintiff seeking the appointment of a temporary administrator...in Supreme Court, as opposed to Surrogate's Court. In so moving for the appointment of a guardian as temporary administrator, and for substitution, the plaintiff was following the procedures outlined in CPLR 1015(a) and 1021. These statutory provisions to not require the plaintiff to proceed in Surrogate's Court, and indeed, the attendant delays incidental thereto would militate against that procedure. The Supreme Court is a court of general jurisdiction with the power to appoint a guardian to serve as temporary administrator, and that court also has broad discretion to act in matters involving substitution (see, Aptacy v. Giorgi, Inc., 124 Misc 2d 175, 475 N.Y.S.2d 985)...Indeed, in order to avoid delay and prejudice in this action which has been pending for some time...there is no special need to proceed in Surrogate's Court and the Supreme Court should have granted the request for the appointment of a guardian as temporary administrator, and for substitution, thereby permitting the case to proceed expeditiously."

Therefore, since this court has the power to appoint decedent's sisters as temporary administrators of decedent's estate and the action has been pending for several years, in order to avoid further delay, plaintiff's request for that relief and for substitution in order to effectuate the proposed settlement, is hereby granted.

Movant is directed to serve a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated: December 16, 2009 [*3]

J.S.C.