Byung Chun Kim v Smith

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[*1] Byung Chun Kim v Smith 2015 NY Slip Op 50001(U) Decided on January 5, 2015 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2015
Supreme Court, Nassau County

Byung Chun Kim, Plaintiff,

against

Robert Smith, Defendant.



012794/11



Law Offices of Andrew Park, P.C.

Incoming Attorneys for Plaintiff

450 Seventh Avenue, Suite 1805

NY, NY 10123

(212) 239-3680

Walia & Walia

Outgoing Attorneys for Plaintiff

136-40 39th Avenue, Suite 505

Flushing, NY 11354

(718) 353-4478

DeSena & Sweeney

Attorneys for Defendant

1500 Lakeland Avenue

Bohemia, NY 11716

(631) 360-7333
Randy Sue Marber, J.

Upon the foregoing papers, the Plaintiff's motion seeking an Order: (A) directing Walia & Walia, PLLC, the Plaintiff's prior counsel, to turn over the Plaintiff's file to the Law Offices of Andrew Park, P.C.; (B) directing the Clerk of the Court to enter the Law Offices of Andrew Park, P.C. as the Plaintiff's new attorneys of record; (C) pursuant to CPLR §§ 1015 and 1021 substituting Eileen M. Roehrig and Robert J. Smith, as Administrator of the Estate of the Defendant, Robert Smith; (D) pursuant to CPLR §§ 3024 and 3025 granting Plaintiff leave to amend the caption of this action to substitute Eileen M. Roehrig and Robert J. Smith, as Administrator of the Estate of the Defendant, Robert Smith; and (E) lifting the stay necessitated by the death of the Defendant, Robert Smith, is determined as hereinafter provided.



In this action, the Plaintiff seeks damages for personal injuries alleged to have been sustained by the Plaintiff in an automobile accident on September 20, 2008. This action was commenced by the Plaintiff, through his counsel, Walia & Walia, PLLC, by the filing of a Summons and Verified Complaint in the Office of the Nassau County Clerk on September 2, 2011. According to the Affidavit of Service of the Summons and Verified Complaint, filed in the Office of the Nassau County Clerk on October 5, 2011, the Defendant was served on October 3, 2011 at 3:35 p.m., when the Summons and Verified Complaint were affixed to the door of the premises located at 157 4th Street, Hicksville, NY 11801. According to the Affidavit of Service, this was the Defendant's last known address. A copy of the Summons and Verified Complaint were then mailed to the Defendant at that address. The Affidavit of Service, sworn to on October 4, 2011 by Syreeta D. Bracken, indicates that after three (3) prior attempts to serve the Defendant at the address, and there being "no answer", the Summons and Verified Complaint were affixed to the door of the premises. The affiant further states that the military status of the Defendant was checked with the neighbor, "John Doe", who confirmed that the Defendant was not in the service of the United States.

It appears that an Answer, on behalf of the Defendant, was interposed by DeSena & Sweeney, LLP, dated November 18, 2011, but never filed in the Office of the Nassau County Clerk. This Answer was verified by Robert P. Sweeney, Esq. The Verification indicates that the attorney made the verification and not the Defendant in that the Defendant was not within the County where the attorney had his office.

On or about April 8, 2013, DeSena & Sweeney, LLP filed a motion (Mot. Seq. 01) seeking an Order pursuant to CPLR § 3126 (3) dismissing the complaint due to the Plaintiff's failure to appoint an administrator. A Request for Judicial Intervention (RJI) was filed along with the motion and the matter was assigned to Hon. Thomas P. Phelan. The Supporting Affirmation of Louis J. DeSena, Esq., dated April 2, 2013, indicates that the Defendant, Robert Smith, died on December 16, 2009. A copy of the Defendant's death certificate was attached to the motion along with a copy of the Summons, Verified Complaint and Verified Answer. Also attached to the motion was a Notice of Death Certificate dated January 12, 2012, a letter dated June 5, 2012 and a letter dated September 7, 2012, all sent to the Plaintiff's prior counsel, Walia & Walia, PLLC. Inasmuch as this motion was deemed an initial discovery motion brought pursuant to CPLR § 3126 (3), it was withdrawn on April 17, 2013 by the Clerk of the Court and a Preliminary Conference was scheduled for May 21, 2013 pursuant to 22 NYCRR § 202.8 (f). On May 21, 2013, this action was marked "Stayed" as a result of the recognition of the death of the Defendant. It is well settled that the death of a party terminates his attorney's authority to act and [*2]stays the action as to him pending the substitution of a legal representative. (See, CPLR § 1015)

Next, on or about May 14, 2013, the Defendant's counsel filed a proposed Order to Show Cause (Mot. Seq. 02), again seeking an Order pursuant to CPLR § 3126 (3) dismissing the complaint due to the Plaintiff's failure to appoint an administrator. In a Memo dated May 23, 2013, Hon. Thomas P. Phelan, returned the Order to Show Cause to the Order to Show Cause Clerk of the Supreme Court, unsigned. In said Memo, Justice Phelan indicated that "According to the death certificate of the defendant submitted with this application, the defendant died on December 16, 2009. This action was not commenced until September 2, 2011, which was after defendant's death".

Thereafter, on or about October 21, 2013, the Law Offices of Andrew Park, P.C., filed a motion, (Mot. Seq. 03) as the Attorney for the Plaintiff, seeking an Order: (A) pursuant to CPLR §§ 1015 and 1021 substituting Eileen M. Roehrig as Administrator of the Estate of the Defendant, Robert Smith; (B) pursuant to CPLR §§ 3024 and 3025 granting Plaintiff leave to amend the caption of this action to reflect the substitution of Eileen M. Roehrig and Robert J. Smith, as Administrator of the Estate of the Defendant, Robert Smith, the deceased defendant; and (C) lifting or vacating the stay necessitated by the death of the Defendant, Robert Smith. In his Affirmation in support of the motion, the Plaintiff's counsel, Scott Edley, Esq., indicated that on October 9, 2013 the Plaintiff substituted his office for the firm of Walia & Walia, PLLC. Included as an exhibit was a Consent to Change Attorney form executed by the Plaintiff.

Mr. Edley, in his Affirmation in support of the Plaintiff's motion (Mot. Seq. 03) also indicated that the Defendant, Robert Smith, died on December 16, 2009. A copy of the Defendant's death certificate was attached as an exhibit.

In a Short Form Order dated December 16, 2013 and entered on December 18, 2013 by the Nassau County Clerk, Justice Phelan denied the Plaintiff's motion (Mot. Seq. 03). In his Order, Justice Phelan wrote: "The record reveals that defendant died on December 16, 2009. Letters of administration were issued on April 14, 2011. This action was not commenced until September 2, 2011. The motion papers were served upon the attorneys of record for defendant. There is no indication that any attempt was made to serve the administrators." Justice Phelan further wrote: "To obtain jurisdiction over the personal representative, he or she must be served in accordance with CPLR article 3 (citations omitted)" (Horseman Antiques, Inc. v. Huch, 50 AD3d 963, 964 [2d Dept. 2008]). In the absence of proper service, no personal jurisdiction was acquired over the administrators; and, therefore, they cannot be substituted as party defendants (Id.)."

The instant motion (Mot. Seq. 04) next ensued. Aside from the addition of the request that the Law Office of Andrew Park, P.C. be recognized as the attorneys of record for the Plaintiff, this motion is essentially the same as the prior motion (Mot. Seq. 03) which was denied by Justice Phelan.[FN1] In fact, in her Affirmation in Support of this motion, the Plaintiff's counsel states that "Your affirmant's office previously moved to lift the stay, but that motion was denied because your affirmant's office mistakenly failed to serve the administrator of defendant's estate." (See Affirmation of Lana Ahreum Song, Esq., dated October 21, 2014 at ¶ 14) She additionally states that "Plaintiff's office previously moved to lift the stay but inadvertently failed to serve the [*3]administrator of ROBERT SMITH's estate. (Id. at ¶ 18)

The Defendant's counsel, Louis J. DeSena, Esq., submits an affirmation in which he takes no position on the portions of the motion addressed to the transfer of the file between Walia & Walia, PLLC and the Law Office of Andrew Park, P.C. He does request that only Robert J. Smith be appointed as Administrator for the purpose of being substituted for the deceased Defendant, Robert Smith.

In her Affirmation in Reply, Ms. Song indicates that Walia & Walia, PLLC had, since the filing of the instant motion, executed the Consent to Change Attorney form and that the Law Office of Andrew Park, P.C. has reimbursed Walia & Walia, PLLC its disbursements in the amount of $465.82. As such, the branch of the motion seeking transfer of the file was withdrawn. However, the Plaintiff's counsel was still seeking the substitution of the Administrator and the lifting of the stay.

Upon reviewing the instant motion, the Court's Principal Law Clerk contacted

Lana Ahreum Song, Esq., the Plaintiff's counsel, to ascertain whether the Court was perhaps missing something since it appeared that this action was a nullity, having been commenced against a dead person. Ms. Song acknowledged that the action is a nullity but chose not to withdraw the motion and requested that the Court render a decision.

That "the dead cannot be sued" is a well established principle of the jurisprudence of this state (See Marte v. Graber, 58 AD3d 1 [1st Dept. 2008] ). It gives rise to the rule that a claimant may not bring a legal action against a person already deceased at the time of the commencement of such action, but instead, must proceed against the personal representative of the decedent's estate (See Jordan v. City of New York, 23 AD3d 436 [2d Dept. 2005]; see also Outing v. Mathis, 304 AD2d 670 [2d Dept. 2003]).

Distilled from these concepts is the rule that no action may effectively be commenced against a deceased person subsequent to his or her death and prior to the appointment of a personal representative (see Arbalez v. Chun Kuei Wu, 18 AD3d 583 [2d Dept. 2005]; Laurenti v. Teatom, 210 AD2d 300 [2d Dept. 1994]; Dime Sav. Bank of New York FSB v. Luna, 302 AD2d 558 [2d Dept. 2003]). The death of a named defendant prior to the commencement of an action has thus been held to render the action, insofar as asserted against the deceased defendant, a legal nullity from its inception which leaves the Court without jurisdiction to grant any requested relief (see Rivera v. Bruchim, 103 AD3d 700 [2d Dept. 2013]; Wendover Fin. Serv. v. Ridgeway, 93 AD3d 1156 [4th Dept. 2012]; Marte v. Graber, 58 AD3d 1, supra; Deutsche Bank Natl. Trust v. Torres, 24 Misc 3d 1216[A], 2009 WL 2005599 [Suffolk County, Sup.Ct. 2009]; cf., GMAC Mtge. Corp. v. Tuck, 299 AD2d 315 [2d Dept. 2002]).

It clearly appears that Justice Phelan, both in his Memo to the Order to Show Cause Clerk regarding Motion Sequence 02 and in his Short Form Order dated December 16, 2013, deciding Motion Sequence 03, pointed out that the Defendant, Robert Smith, died before this action was commenced. In his December 16, 2013 Short Form Order, Justice Phelan ruled that jurisdiction over the personal representative could not be acquired. Apparently, counsel appearing in this matter were unaware of the commonly accepted rule of law that the "the dead cannot be sued" although they knew that the Defendant died before the action was commenced as neither the Plaintiff's nor the Defendant's counsel ever raised this issue.

Accordingly, it is hereby

ORDERED, that the Plaintiff's motion is DENIED and this action is DISMISSED as it is a nullity.

This constitutes the decision and order of the Court.

DATED:Mineola, New York

January 5, 2015

___________________________



Hon. Randy Sue Marber, J.S.C.

XXX

Footnotes

Footnote 1:This matter was reassigned to this Court due to Justice Phelan only hearing Article 81 matters.