Friedman v Clearview Gardens Second Corp.

[*1] Friedman v Clearview Gardens Second Corp. 2011 NY Slip Op 52248(U) Decided on December 14, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2011
Supreme Court, Queens County

Ron Friedman,

against

Clearview Gardens Second Corp.



23317/10



For the Plaintiff and Plaintiff-Intervenor: Aaron David Frishberg, Esq., 116 West 111th Street, New York, New York 10026

For the Defendant: Hankin & Mazel, PLLC, by Mark L. Hankin, Esq., 7 Penn Plaza, New York, New York 10001

Charles J. Markey, J.

The following papers numbered 1 to 11 read on this motion by plaintiff and plaintiff-intervenor for leave to amend the complaint and to permit the intervention of Daniel Friedman in his capacity as personal representative of the estate of Eleanore H. Friedman.

Papers Numbered

Notice of Motion - Affidavits - Exhibits......................................................................1-4

Answering Affidavits - Exhibits...................................................................................5-7

Reply Affidavits..........................................................................................................8-11

By order dated June 15, 2011, based upon a memorandum decision of February 3, 2011 (Friedman v Clearview Gardens Second Corp., 30 Misc 3d 1221(A), 2011 WL [*2]489545, 2011 NY Slip Op 50149(U) [Sup Ct Queens County 2011], this Court granted a cross motion by defendant to dismiss the first cause of action asserted by plaintiff Ron Friedman unless plaintiff joined Daniel M. Friedman, as executor of the estate of Eleanore Friedman, as a party plaintiff within 45 days of service of a copy of the order with notice of entry. Plaintiff served the instant motion on August 24, 2011.

Plaintiff has chosen an improper procedural vehicle to join an additional party plaintiff. Such relief should be sought pursuant to CPLR 1003, rather than as a motion to intervene under CPLR 1012 or 1013. Insofar as there is no prejudice to defendant in doing so, this mistake shall be disregarded, and the Court will deem the motion to be an application for joinder under CPLR 1003 (CPLR 2001).

Defendant's contention that plaintiff failed to comply with the time frame set forth in the order dated June 15, 2011, for joining the executor of decedent's estate is unavailing. Although defendant asserts that the order was served on plaintiff's counsel on July 7, 2011, no affidavit of service has been submitted to the Court to establish when the 45-day period for joinder commenced.

In any event, since the time fixed by the Court for plaintiff to join the executor of decedent's estate was measured from the service of the court's order, and since service was accomnplished by mail, five days must be added to the prescribed period. (CPLR 2103[b][2]). Thus, even assuming that defendant served the order on July 7, 2011, plaintiff's service of the instant motion prior to August 26, 2011, constituted substantial compliance with the Court's directive.

The objection of defendant to plaintiff's description of the representative capacity in which Daniel Friedman is sought to be added as "personal representative" - - rather than "executor" of the estate of Eleanore Friedman - - lacks merit. A personal representative is a person who has received letters to administer the estate of a decedent (EPTL 1-2.13). The term "letters" includes letters testamentary (SCPA 103[34]), and the person to whom letters testamentary have been issued is an executor (SCPA 103[20]). Furthermore, in defining who may maintain various actions on behalf of a decedent or the decedent's estate, the pertinent EPTL provisions use the term "personal representative" (EPTL 11-3.1, 11-3.2, 5-4.1).

In addition, while defendant has questioned the capacity of Daniel Friedman and the authority of plaintiff's counsel to appear on Daniel Friedman's behalf despite a representation to that effect by counsel as an officer of the Court, both a certificate evidencing the issuance of letters testamentary to Daniel M. Friedman and an affidavit from the executor have been submitted to the Court in reply papers. [*3]

Accordingly, Daniel M. Friedman, as executor of the estate of Eleanore Friedman, is joined as a party plaintiff in the action (CPLR 1003). Since the joinder was made upon motion of the new party as well as the original plaintiff, a supplemental summons need not be filed with the Clerk of the Court or served upon the personal representative. (CPLR 305[a]).

The caption is thus amended to reflect the additional party. The new caption shall be as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS -

X

RON FRIEDMAN and DANIEL M. FRIEDMAN,

as Executor of the Estate of ELEANOREIndex No. 23317/10

FRIEDMAN, Deceased,

Plaintiffs,

- against -

CLEARVIEW GARDENS SECOND CORP.,

Defendant. -

X

The plaintiffs are granted leave to serve and file an amended complaint in the form proposed except for the designation of Daniel M. Friedman as a plaintiff-intervenor. Defendant has not sustained prejudice from any delay in the application for leave to amend, and the proposed amended pleading is not palpably insufficient or devoid of merit. Under these circumstances, leave to amend is freely granted. (CPLR 3025[b]; see, Kahan v Spira, 88 AD3d 964 [2nd Dept. 2011]; Sabatino v 425 Oser Ave., LLC, 87 AD3d 1127 [2nd Dept. 2011]; Jablonski v Jakaitis, 85 AD3d 969 [2nd Dept. 2011]; Lucido v Mancuso, 49 AD3d 220 [2nd Dept. 2008] [case setting and discussing the appropriate standard); accord, Weber v Purow, ___ AD3d ____, 931 NYS2d 905 [2nd Dept. 2011] [granting leave to amend the answer based upon the same standard].

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: December 14, 2011

[*4]