Yamoah v Evangelista

[*1] Yamoah v Evangelista 2014 NY Slip Op 50747(U) Decided on May 12, 2014 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2014
Supreme Court, Dutchess County

Tarsha Y. Yamoah, Plaintiff,

against

Emilio Evangelista, Defendant.



406/2013



SARAH J. BRUNO, ESQ.

FRIEDMAN SANCHEZ, LLP

Attorneys for Plaintiff

16 Court Street, 26th Floor

Brooklyn, New York 11241

JOHN FENDT, ESQ.

LAW OFFICE OF KAREN L. LAWRENCE

Attorneys for Allstate Insurance Company

100 Crystal Run Road, Suite 112

Middletown, New York 10941

James D. Pagones, J.

Plaintiff moves for an order, pursuant to CPLR §1015, granting her leave to appoint Melissa Visconti Simpson (a claims representative at Allstate Insurance Company) as temporary administrator of the defendant's estate and amending the caption accordingly.

The following papers were read:

Notice of Motion-Affirmation-Exhibits A-F-1-9

Affidavit of Service

Affirmation in Opposition-Affidavit of Service10-11

Affirmation in Reply-Affidavit of Service12-13

Upon the foregoing papers, plaintiff's motion is denied in its entirety.

Section 1015(a) of the CPLR provides that "if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." "A motion for substitution may be made by the successors or representatives of a party or by any party" (CPLR §1021).

The substitution provisions of CPLR §§1015(a) and 1021 presuppose that an action was [*2]commenced against a living person, someone who has the legal capacity to be a party, and the action was pending at the time such party died (see Vincent C. Alexander Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR C1015:3). It is undisputed that Emilio Evangelista passed away prior to the filing of the summons and complaint by the plaintiff.

As a plaintiff is unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate, this action is a nullity and will be marked off the Court's calender (see Marte v. Graber, 58 AD3d 1 [1st Dept 2008]; Arbelaez v. Chun Kuei Wu, 18 AD3d 583 [2nd Dept 2005]; NYCTL 2009-A Trust v. 706 Fourth Ave., LLC, 39 Misc 3d 1202[A][Sup Ct, Kings County 2013]; Ramirez v. Zalak, 10 Misc 3d 1080[A] [Sup Ct, Kings County 2006]).

The foregoing constitutes the decision and order of the Court.

Dated:May 12, 2014

Poughkeepsie, New York

ENTER _______________________________HON. JAMES D. PAGONES, A.J.S.C.