Ganthier v Kurtz

[*1] Ganthier v Kurtz 2010 NY Slip Op 51399(U) [28 Misc 3d 1219(A)] Decided on August 10, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2010
Supreme Court, Queens County

Jeremie Ganthier

against

Sharon Kurtz



10682 2009



For the Plaintiff: Lazarowitz & Manganillo, LLP, by Thomas J. Solomon, Esq., 2004 Ralph Ave., Brooklyn, NY 11234

For the Defendant: [No Opposition submitted by] Mendolia & Stenz, by Stacey E. Printz, Esq., 875 Merrick Avenue, Westbury, NY 11590

Charles J. Markey, J.

This opinion reviews the legal issue whether this Supreme Court should intercede to appoint a representative for the Estate of a deceased party to a pending civil action, so that the lawsuit's prosecution or defense shall continue without long interruption.

Plaintiff's counsel moves to appoint defense counsel, the Law Offices of Mendolia and Stenz (the Law Offices), as the administratrix of the estate of Sharon Kurtz, the defendant, for the purposes of this action only, to substitute the Law Offices in its representative capacity as the party defendant in place of Sharon Kurtz, and to amend the caption to reflect the substitution.

Although the Supreme Court, as a court of general jurisdiction, has the authority to appoint a temporary administrator for the purpose of acting for the estate in a pending civil action (Harding v Noble Taxi Corp.,155 AD2d 265 [1st Dept.1989]), this authority should be used sparingly in deference to the expertise of the Surrogate's Court, the usual forum for the appointment of estate fiduciaries (Jones v Vetter, 188 Misc 2d 475 [Sup Ct Nassau County 2001]; Abecasis v Fontanazza, 10 Misc 3d 195 [NYC Civ Ct Kings County 2005]). The movant has not presented any facts that would warrant the exercise of the court's power (Id.)

In the moving papers, plaintiff's counsel has stated only that he has been advised by defendant's counsel of the death of defendant, and that the attorneys agreed that the Law Offices would be appointed as administratrix of decedent's estate and that plaintiff's recovery would be limited to the extent of applicable insurance. Plaintiff has not [*2]submitted a death certificate or advised the court of the date of death. Nor has plaintiff informed the court whether decedent died intestate or left a will, or whether a proceeding is pending for the appointment of a fiduciary.

Service of this application was not made on anyone other than the Law Offices, and there is no showing of any efforts to identify decedent's heirs, distributees or next of kin. (SCPA sections 1001, 1002, 1003.) Moreover, while plaintiff has not provided any information about the nature or status of this action, a review of the court's computerized records shows that the action is not trial ready but in its early stages. There has been no allegation of undue delay and no demonstration that prejudice would result if an administrator were appointed in the usual manner by the Surrogate's Court (see, Jones, 188 Misc 2d at 475-476, supra; Castrovinci v Edwards, 59 Misc 2d 696 [Sup Ct Westchester County 1969]; Abecasis, 10 Misc 3d at 197, supra; cf. Batan v Schmerler, 155 Misc 2d 46 [Sup Ct Queens County 1992]; Biancono v Pierre, 9 Misc 3d 1126A, 2005 NY Slip Op 51801[U] [2005] [NYC Civ Ct Kings County]).

Upon the foregoing papers, accordingly, it is ordered that the unopposed motion is denied without prejudice to further applications as provided herein. Should plaintiff be so advised, he may petition the Surrogate's Court for the appointment of a fiduciary with limited powers to defend this action (SCPA sections 702 and 1002).

The Court also notes that since only "a natural person or a person authorized by law to be a fiduciary" is eligible to receive letters (SCPA section 707), the Law Offices may not be appointed as temporary administrator of decedent's estate (see, Matter of Estate of Palmquist, 44 AD2d 897 [4th Dept. 1974]; Biancono, 2005 NY Slip Op 51801[U], slip op. at 3; Matter of Huntington, 16 Misc 3d 914 [Sup Ct Onondaga County 2007]). In addition, the attorneys are reminded that upon the death of a party to an action, the authority of the attorney for that party to act or proceed in the action is terminated (see, Lewis v Kessler, 12 AD3d 421 [2nd Dept. 2004]; Hyman v Booth Mem. Hosp., 306 AD2d 438 [2nd Dept. 2003]). This action shall remain stayed pending the substitution of the duly appointed personal representative of the estate of decedent pursuant to CPLR 1015 and 1021 (Matter of Einstoss, 26 NY2d 181 [1970]; Gonzalez v Ford Motor Co., 295 AD2d 474 [2002]).

The foregoing constitutes the decision and order of the Court.

Dated: August 10, 2010

J.S.C.

[*3]Appearances:

For the Plaintiff: Lazarowitz & Manganillo, LLP, by Thomas J. Solomon, Esq., 2004 Ralph Ave., Brooklyn, NY 11234

For the Defendant: [No Opposition submitted by] Mendolia & Stenz, by Stacey E. Printz, Esq., 875 Merrick Avenue, Westbury, NY 11590