Nobles v 400 Eighth Ave. Owners, LLC

Annotate this Case

Download PDF

Nobles v 400 Eighth Ave. Owners, LLC 2013 NY Slip Op 32338(U) September 20, 2013 Supreme Court, New York County Docket Number: 0402994/04 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 101212013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY ~~~~. PRESENT: PART FCE / 5- Justice M O T I O N DATE ( 1 The following papers, numbered I to were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits .. cn cc - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits 2 0 2 0 Yes Cross-Motion: 0 No W K Upon the foregoing papers, it is ordered that this motion FILED f i 4 i OCT 0 2 2013 I i NEW YORK R ~ O F F I ~ t-w C J p Check one: : ti J. S.C. 2m FINAL DlSPOSlTIO Check if appropriate: 0 DO NOT POST OSlTlON REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 .................................................................. X JACK NOBLES, Plaintiff, -against- DECISION/ORDER Index No. 402994/2004 Seq.No. 002 400 EIGHTH AVENUE OWNERS, LLC., EAGLE COMMUNICATIONS, EXPANETS OF OF NEW YORK, INC.and A&S CONTRACTORS, Defendants. ................................................................. X 400 EIGHTH AVENUE OWNERS, LLC, Third-party Plaintiff, -against- FILED 1 OCT 0 2 201% ' THE CITY OF NEW YORK, Third-party Defendant. ............................................................... X KATHRYN E. FREED, J.S.C.: RECITATION, AS REQUIRED BY CPLRs2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED ................... ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ............ ANSWERING AFFIDAVITS. ............................................................... REPLYING AFFIDAVITS .................................................................... EXHIBITS.............................................................................................. OTHER................................................................................................... NUMBERED ..................... .........1-2...... ..................... ..................... ........ 3-6....... ..................... UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS: The fr of Pasternack Tilker Napoli Bern, LLP moves pursuant to CPLRS 2214(d) and CPLR im $321(b)(2),for an Order permitting them to withdraw as counsel for deceased plaintiff, Jack [* 3] Nobles. No opposition has been submitted. After a review of the papers presented, all relevant statutes and case law, the Court denies the Order to Show Cause without prejudice. Factual and procedural background: This OSC emanates from an action to recover damages for injuries sustained when on November 3,1999, plaintiff was injured when he was struck in the head and left shoulder by a lighting fixture that fell from the ceiling of the office suite where he was working. Thereafter, plaintiff retained the firm of Brecher Fishman Pasternack Popish Feit Heller Rubin & Reiff, P.C., which subsequently changed its name to Pasternack Tilker Zeigler Walsh Stanton & Romano to represent him in a civil action predicated on causes of action for negligence in relation to his im accident. Pasternack Tikler Zeigler Walsh Stanton & Romano subsequently merged with the fr of Napoli Bern in 2012 and continues to represent plaintiff under the name of Pastemack Tilker Napoli Bern. Plaintiff signed a retainer on November 18, 1999. On October 11, 2002, a suit was commenced on his behalf via the filing of a Summons and Verified Complaint. Subsequently, on January 8,2003 and January 14,2003, issue was joined on behalf ofdefendants. OnMarch 3,2003, a preliminary conference was held and an Order setting forth the time periods by which to complete pre-trial discovery was rendered. On November 14,2003, a compliance conferencetook place. On July 16,2004, the matter was transferred via court order from Kings County to New York County. Unfortunately, in 2005, plaintiff passed away. Pasternack Tilker Napoli Bern contends that it made several fruitless attempts to contact a representative of Mr. Nobles s estate. Additionally, they claim to have hired a private investigator to locate relatives of the deceased plaintiff to discuss 2 [* 4] the status of the suit. The firm also contends that they sent several correspondences to possible family members regarding the suit and what appropriate steps to take with regard to said suit. In 2007, a woman identified as Roshana Nobles, daughter of the deceased plaintiff, contacted their office. She was apprised of the pending suit and also advised that an estate representative was required to be appointed in order to continue the suit. Ms. Nobles apparently never gave the firm any indication of what her intent was with regard to her father s suit because they assert that numerous phone calls and letters sent to her went repeatedly ignored. However, after a time, the firm again established contact with Ms. Nobles and informed her that it would no longer be pursuing the case on behalf of her father. Consequently, in February 201 1, Ms. Nobles agreed to discontinue the action. The firm sent her correspondence to sign, authorizing them to officially discontinue the matter. No response was received. However, on October 22,2012, the firm again contacted Ms. Nobles and another relative, Tyriq Nobles. The firm apprised both that they would need to appoint an administratorin order for the suit to continue. This correspondence was acknowledged via a signed certificate receipt but was met with no response. In June 201 1, the fr filed a motion to be relieved as counsel based upon a lack of im cooperation from the deceased plaintiffs relatives. On October 4, 201 1, Justice Barbara Jaffe rendered a written decision denying said motion based on the fact that the fr failed to submit im evidence that an estate administrator had indeed been appointed. This Court finds itself in the same position as Justice Jaffe. While the Court understands the firm s frustrated desire to be finally rid of this case, it has no alternative but to deny the instant motion for the same exact reason Justice Jaffe was compelled to. It is well established that [a] 3 [* 5] party s death divests a court of jurisdiction to conduct proceedings in an action until proper substitution has been made pursuant to CPLR 1015(a) ( Noriega v. Presbyterian Hosp. i the City n ofNew York, 305 A.D.2d 220 [lstDept. 20031 ). Therefore, any order after the party s death and before substitution, is deemed void ( see Manto v. Cerbone, 71 A.D.3d 1099 [2d Dept. 20101 ). In the case at bar, the firm asserts that [tlhe plaintiffs estate representative s failure to communicate with our office to discuss the decedent s case and provide us with the necessary assistance to continue the prosecution has made it effectively impossible for out office to zealously prosecute this action on their behalf. Accordingly, this office has no choice but to respectfully request this Court s permission to withdraw as deceased plaintiffs attorney of record. ( see OSC, 7 23). Frankly, the Court is confused by this statement. Is the firm contending that an estate representative had actually been appointed subsequent to and in accordance with Justice Jaffe s decision? If so, this Court clearly needs to know the identity of this individual and the circumstances of hisher appointment. Absent the appointment of an estate administrator, this Court cannot grant the requested relief. Therefore, in accordance with the foregoing, it is hereby ORDERED that the Order to Show Cause is denied without prejudice; and it is further ORDERED that this constitutes the decision and order of the Court. DATED: September 20,2013 SEP2 o 2013 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.