Zappie v Perry

[*1] Zappie v Perry 2016 NY Slip Op 51905(U) Decided on December 28, 2016 Supreme Court, Chautauqua County Wojtaszek, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2016
Supreme Court, Chautauqua County

Angelo P. Zappie and Deborah Zappie, Plaintiffs,

against

Dolores L. Perry, Defendant.



K1-2011-001743



Joy Ellen Miserendino, Esq. appearing on behalf of the plaintiffs.

Stephen P. Brooks, Esq. appearing on behalf of the defendant.

Thomas F. Knab, Esq. appeared for the plaintiffs at the hearing (because Ms. Miserendino was called as a testifying witness on behalf of the plaintiffs at the hearing).
Paul B. Wojtaszek, J.

DECISION AND ORDER

Plaintiffs ANGELO P. ZAPPIE and DEBORAH ZAPPIE (hereinafter "the plaintiffs") brought this motion pursuant to Civil Practice Law and Rules §§ 305(c), 2001, and 3025(b) for an Order permitting the plaintiffs to amend their complaint to name Wilma W. Dopler, as Executrix of the Estate of Dolores L. Perry, Deceased, as the correct party defendant, and also permitting the plaintiffs to serve Wilma Dopler in this capacity with the amended summons and complaint.

Defendant Dolores L. Perry (hereinafter "the defendant") responded by filing a motion pursuant to Civil Practice Law and Rules §§ 3211(a)(2), (a)(3), (a)(5), and (a)(7); 3211(c); and 3212 seeking an Order of summary judgment dismissing the plaintiffs' complaint.[FN1]

The parties submitted the following papers in support of their respective positions, all of [*2]which have been reviewed by this Court:

Plaintiffs' Papers:

• Notice of Motion dated September 3, 2015 (filed September 8, 2015);• Attorney Affidavit of Joy Ellen Miserendino, Esq., with attached exhibits, sworn to on September 3, 2015;• Affirmation in Opposition to Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment and in Further Support of Plaintiffs' Motion to File and Serve a Summons and Complaint in this Matter of Joy Ellen Miserendino, Esq., with attached exhibits, sworn to on November 2, 2015;• Affirmation in Reply to Defendant's Opposition to Plaintiffs' Motion to File and Serve a Summons and Complaint of Joy Ellen Miserendino, Esq., sworn to on November 18, 2015; and• Letter Brief on behalf of plaintiffs dated July 6, 2016, signed by Thomas F. Knab, Esq.

Defendant's Papers: • Notice of Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment dated September 4, 2015 (filed September 9, 2015);• Affirmation in Support of Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment, with attached exhibits, sworn to by Stephen P. Brooks on September 4, 2015;• Affidavit of Robert J. Stewart in Support of Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment, with attached exhibits, sworn to by Mr. Stewart on September 1, 2015;• Affidavit of Wilma W. Dopler in Support of Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment, sworn to by Ms. Dopler on September 2, 2015;• Affirmation in Opposition to Plaintiffs' Motion to Amend the Complaint and in Further Support of Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment of Stephen P. Brooks, Esq. sworn to on October 16, 2015;• Affirmation in Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss Plaintiffs' Complaint and for Summary Judgment of Stephen P. Brooks, Esq. sworn to on November 5, 2015; and• Letter brief on behalf of the defendant dated June 30, 2016, signed by Mr. Brooks.

In addition to reviewing the written submissions, counsel also appeared for oral argument on November 23, 2015 with Joy Ellen Miserendino, Esq. appearing on behalf of the plaintiffs and Stephen P. Brooks, Esq. appearing on behalf of the defendant. At the conclusion of oral argument a further evidentiary hearing was scheduled for June 24, 2016 at which time Thomas F. Knab, Esq. appeared for the plaintiffs (because Ms. Miserendino was called as a testifying witness on behalf of the plaintiffs at the hearing), and Mr. Brooks appeared for the defendant. The testimony of Ms. Miserendino, Mr. Robert J. Stewart, and various exhibits were accepted into evidence at the hearing.

After reviewing all submissions, testimony, and evidence, as well as hearing counsel in support of their respective positions, the Court hereby denies the plaintiffs' motion and grants the defendant's motion, and the complaint is dismissed in all respects.

FINDINGS OF FACT:

The credible evidence shows that Angelo Zappie claims personal injuries stemming from a motor vehicle accident that took place on December 16, 2008 when the vehicle he was [*3]operating was involved in a collision with a vehicle operated by the defendant. Mr. Zappie and his spouse are the plaintiffs in this matter.

The defendant died on November 3, 2011.

On December 15, 2011 the plaintiffs filed a summons and complaint in the Chautauqua County Clerk's Office seeking damages as a result of the accident and naming Dolores Perry as the defendant in the action.

On February 3, 2012, Wilma W. Dopler was appointed Executrix of the defendant's estate (hereinafter "the Executrix").

On April 11, 2012 the plaintiffs personally "served" the complaint upon the Executrix of the defendant's Estate. Therefore, counsel for the plaintiffs knew the defendant was dead no later than April 11, 2012.[FN2]

Approximately two weeks later Robert J. Stewart, a claims adjuster employed by the defendant's motor vehicle insurer Merchants Insurance Group, requested from plaintiffs' counsel, Joy Ellen Miserendino, Esq., a copy of the affidavit of service reflecting service upon the defendant's Estate and authorizations to obtain medical and No-Fault records. Mr. Stewart confirmed this and a "30-day extension" of time to appear and answer in his April 27, 2012 letter. He did the same in another letter dated May 22, 2012.

On June 22, 2012, Mr. Stewart and Ms. Miserendino spoke on the telephone, this was their only direct contact with one another. The contents of this telephone call are at the heart of the dispositive issue in these motions. Another letter dated June 22, 2012 from Mr. Stewart confirmed the conversation and "a general extension to appear and answer."

Plaintiffs' post-hearing written submission states that during this call Ms. Miserendino "secured from Mr. Stewart an agreement that the statute of limitations would not be an issue." (Emphasis added). Mr. Stewart denies any such reference, and most importantly Ms. Miserendino signed the June 22, 2012 letter she received from Mr. Stewart confirming receipt. She dated it and failed to add, delete, or in any other way amend the letter which reads exactly as follows:

"This letter will confirm our telephone conversation on June 22, 2012 concerning the above-captioned matter. As we discussed, you granted a general extension to appear and answer your Summons & Complaint on behalf of Dolores Perry. Please sign and date this letter and return it to my attention at the fax number or email address listed below.As we discussed, your office will provide medical reports and/or authorizations which will allow us to get a copy of Mr. Zappie's no-fault and medical records related to this accident.Thank you for your cooperation in this matter."

Letters dated March 14, 2014 (countersigned by plaintiffs' counsel), September 15, 2014, and July 29, 2015 from Mr. Stewart continued to confirm the "general extension" of time to appear and answer while also following up for authorizations.

Similarly, in Ms. Miserendino's letter of June 30, 2015 she confirms "we are working under a general extension," and her July 2, 2015 letter encloses authorizations but makes no reference to an extension of time.

Ms. Miserendino admitted there was nothing placed in writing with respect to the statute of limitations, but she claimed repeatedly in her testimony that the "general extension" included a waiver of the defendant's statute of limitations defense.

Mr. Stewart testified that he never said anything to Ms. Miserendino or anyone else at her office with respect to waiving the defendant's statute of limitations defense. He never indicated such a waiver in writing either. His recollection of the June 22, 2012 telephone call was that they did not discuss anything related to the summons and complaint, service, timing, the death of the defendant, the rights of the defendant, the caption, or the statute of limitations. Mr. Stewart did admit he expected to settle the case, but he did not understand the general extension to protect the plaintiffs' rights regarding the statute of limitations.

This June 22, 2012 telephone call is the key exchange, and counsel for the plaintiffs had the opportunity to memorialize an agreement if one existed, or to timely commence the action if there was any question about the purported waiver of the statute of limitations. She knew the wrong party was sued, and the action was therefore a nullity from the outset. She knew she had over 14 months to timely file the action against a known, proper party, and from the time of the June 22, 2012 call she had almost one full year to timely commence.

There was never any confusion about the proper party or where they resided. There was never any confusion about the applicable statute of limitations. There was no deception and counsel for the plaintiffs is left to argue her perception as to whether the defendant waived the statute of limitations defense. This is not memorialized to writing in a single instance and the June 22, 2012 conversation is all the Court has to find a stipulation or that Ms. Miserendino relied upon actions and statements of Mr. Stewart to her detriment.

Mr. Stewart was steadfast in his testimony that he never once waived the defendant's statute of limitations defense. When repeatedly pressed as to what benefit there was to plaintiffs for granting the defendant a general extension of time to appear, he did finally concede a "stay of litigation," but this falls far short of being an admission by Mr. Stewart and is just not proof of an agreement to waive the statute of limitations defense. Importantly, this concession that there was a "stay of litigation" amounts to Mr. Stewart admitting litigation would be held in abeyance to save costs, review records, and potentially settle the file, but a voluntary agreement between the parties for a temporary stay of suit is ordinarily considered to have been made in view of and without intending to avoid or circumscribe the effect of the applicable Statute of Limitations (Robinson v. City of New York, 24 AD2d 260, 262 [1st Dept 1965]).

Conclusions of Law:

The plaintiffs' initial motion papers argue the following: (1) the action was timely commenced, (2) the correct but misnamed defendant was served; and (3) as a result this Court has jurisdiction to amend the summons and complaint pursuant to CPLR § 3025(b) naming the Executrix of the Estate of Dolores Perry as the correct party defendant.

Plaintiffs' initial motion papers cite CPLR § 305(c) as authority to amend the summons; CPLR § 2001 as authority to correct a mistake, omission, defect, or irregularity; and CPLR § 3025 as authority to amend the pleadings.

The defendant's responsive motion is framed as both a CPLR §§ 3211 motion to dismiss and a 3212 summary judgment motion, and the motion is the defendant's appearance because no answer was served.

The parties' submission of affidavits and documentary evidence concerning the issues to be determined, including the timeliness of plaintiffs' action, clearly indicated a summary [*4]judgment course was deliberately pursued, and even though the parties are entitled to notice that the motion will be accorded summary judgment treatment, no such notice was needed here because both parties laid bare their proof (see Nowacki v. Becker, 71 AD3d 1496 [4th Dept 2010]).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320, 324, 508 NYS2d 923 [1986]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (S.J. Capelin Assoc. v. Globe Manufacturing Corp. 34 NY2d 338, 340, 357 NYS2d 478 [1974]). To defeat a motion for summary judgment, the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact, and importantly mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595 [1980]).

CPLR § 210(b) excludes 18-months after the time of a defendant's death from the time within which an action must be commenced against an Executrix. This is uncontested, black-letter law. When the defendant died on November 3, 2011 the statute of limitations with respect to the proper party in this action was extended to June 16, 2013. This is 4 ½ years from the date of the accident.

CPLR § 2104 "Stipulations:"

An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk (CPLR § 2104).

With respect to the requirement that a waiver of the statute of limitations be in writing, the defendant relies upon Terry v. Long Island Railroad, (207 AD2d 881 [2d Dept 1994]) which held an agreement to waive the statute "must be in writing or made in open court in order to bind the parties "

There is no written stipulation in this case, and this is grounds to deny the relief requested by the plaintiffs for the failure to comply with CPLR § 2104, however this Court recognizes there is some authority, although this was not raised by the plaintiffs, for the proposition that CPLR § 2104 cannot be invoked to avoid an oral stipulation if the stipulation was actually made and the adverse party relied on it (see Leemilt's Petroleum, Inc. v. Public Storage, Inc., 193 AD2d 650 [2d Dept 1993]) (holding plaintiff could not enforce CPLR § 2104 where it is "uncontroverted" he orally granted an extension of time to answer to September 14, the answer was served on September 10, and plaintiff entered a default judgment on September 20) compare DeSimone v. Barry, Bette & Led Duke, Inc., 252 AD2d 948 [4th Dept 1998] (holding the Record does not show an oral stipulation was made where defendant's former attorney made the conclusory statement he obtained an oral extension to answer, but the plaintiff submitted proof establishing no one granted an extension and the former attorney also "failed to confirm the alleged extension in writing, even though he repeatedly confirmed in writing the unlimited extension of time granted by the plaintiffs with respect to the first complaint.") CPLR § 2104 should be enforced unless there is convincing proof that a stipulation was actually made and Ms. [*5]Miserendino relied on it. However, even if CPLR § 2104 is not enforced as a threshold issue, the plaintiffs are still not entitled to the relief they seek and the complaint must be dismissed.

The initial motion and legal argument made by the plaintiffs is legally deficient. This is made abundantly clear by the holdings in Wendover Financial Services v. Jo-Ann Ridgeway (93 AD3d 1156 [4th Dept 2012]) where the decedent/defendant executed a note and mortgage with respect to her home several years before dying. The plaintiff's action alleged it was the actual owner of the home due to a series of assignments. The plaintiff named the defendant as a party to the action, but the defendant had already died. The Fourth Department held the action against the defendant was a nullity from its inception because it is well established the dead cannot be sued (see Wendover, 93 AD3d at 1157). The Court also importantly held "the caption may not be properly amended pursuant to CPLR § 305(c)" because the defendant was never a party to the action and, thus, "there was no party for whom substitution could be effected pursuant to CPLR § 1015(a)" (see Wendover, 93 AD3d at 1157) see also Marte v. Graber, 58 AD3d 1, 4 [1st Dept 2008] (holding an action is a nullity from its inception where the defendant dies before the summons and complaint was filed; the dead cannot be sued, therefore no party for whom the substitution of a proper party could be made ever existed; and no CPLR § 305(c) amendment can be made where a proper party was never served with process).

With the well-settled law of Wendover clearly barring the plaintiffs' initial request for relief, the plaintiffs then submitted papers arguing the defendant waived her statute of limitations defense and seeking an Order permitting the plaintiffs to file and serve a summons and complaint naming the Executrix as the defendant. This was done in response to the defendant's motion. Subsequently, plaintiffs' position has further evolved to a request that the "defendant [be] equitably estopped from asserting the statute of limitations against plaintiffs' claims against the Estate."

It is clear that because a dead person was sued, the action here was a nullity at the outset. As a result, a pleading that never existed because it was a nullity cannot be amended; no CPLR § 305(c) amendment can be made where a proper party was never served with process; and a substitution cannot be made for a party that never existed. Therefore, the only legal issue in dispute is whether the estoppel doctrine can prevent the statute of limitations from barring the action.

In order to invoke the doctrine of equitable estoppel, a plaintiff must show that he or she was "induced by fraud, misrepresentations or deception to refrain from filing a timely action" and the plaintiff's reliance on the fraud, misrepresentations or deception was reasonable (Simcuski v Saeli, 44 NY2d 442, 449, [1978]; Richey v. Hamm, 78 AD3d 1600, 1602 [4th Dept 2010]; Barrett v. Huff, 6 AD3d 1164 [4th Dept 2004]).

This Court recognized that the question of whether a defendant should be equitably estopped is generally a question of fact that requires a hearing, and a hearing to determine that issue was conducted by this Court to fully explore the facts and circumstances surrounding the communication(s) between plaintiffs' counsel and the defendant's liability insurance adjuster (see Richey, 78 AD3d at 1602). After the hearing was conducted, the parties were further invited by this Court to submit additional briefs on the equitable estoppel issue. Both parties took advantage of the post-hearing opportunity to submit additional briefs, and they were all reviewed in full and at length by this Court.

The plaintiffs rely most heavily on the legal principle enunciated in Arbutina v. Bahuleyan (75 AD2d 84 [4th Dept 1980]) that the doctrine of estoppel should be applied to [*6]prevent the inequitable use of the statute of limitations defense if, by a deception, the defendant has caused the plaintiff to delay suit. The Fourth Department in Arbutina reversed the trial court's ruling that permitted the defendants to serve amended answers pleading the statute of limitations defense and remitted the matter for a factual hearing to determine if the defendants should be equitably estopped from pleading the statute of limitations (see Arbutina, 75 AD2d at 88). However, a close reading of the facts and circumstances leading to the remittal in Arbutina shows that it is distinguishable from the acts and omissions of the plaintiffs in this case.

Most notably, in Arbutina the plaintiff argued it failed to timely commence an action sounding in medical malpractice against the defendants because the defendant/hospital unreasonably delayed in delivering records to the plaintiff, thereby improperly and inequitably shortening the plaintiff's time to procure expert advice to determine if the action should be commenced (see Arbutina, 75 AD2d at 87). The Court found issues of fact required a hearing at the trial court level for factual determinations as to equitable estoppel and explained "[i]f defendant's conduct was calculated to mislead and plaintiff relied upon it, that is enough and the estoppel is imposed to prevent" an unconscionable advantage (see Arbutina, 75 AD2d at 86).

When the estoppel issue was ultimately raised here this Court ordered a hearing to resolve issues of fact with respect to estoppel. The issues included what representations Ms. Miserendino made, what representations Mr. Stewart made, whether Ms. Miserendino was deceived, whether Mr. Stewart's conduct was calculated to mislead, and whether Ms. Miserendino relied upon the alleged deception regardless of "whether he [Mr. Stewart] intended a wrong" (see Arbutina, 75 AD2d at 86).

Plaintiffs also rely upon Robinson v. City of New York (24 AD2d 260, 263 [1st Dept 1965]), which is consistent with Arbutina in stating a defendant may be estopped from using the statute of limitations without the existence of fraud or an intent to deceive, rather it is enough "if the agreement, representations or conduct of the defendant were calculated to mislead the plaintiff, and the plaintiff in reliance thereon failed to sue in time " (Robinson, 24 AD2d at 263). Notably in Robinson there was a written stipulation, and the Court also stated "[a] voluntary agreement between parties for a temporary stay of suit is ordinarily considered to have been made in view of and without intending to avoid or circumscribe the effect of the applicable Statute of Limitations (Robinson, 24 AD2d at 262).

The Fourth Department in Brands v. Sperduti (43 AD2d 903, 904 [4th Dept 1974]) refused to estop the defendant from pleading the statute of limitations defense and distinguished itself from Robinson by noting Robinson had extenuating circumstances, specifically the parties' "written stipulation adjourning an examination before trial and postponing trial "

In this case, there was no calculation to mislead the plaintiff, Mr. Stewart intended no wrong, and counsel for the plaintiff did not rely, or reasonably rely, on the defendant's conduct in failing to commence the action on time. Although not dispositive, it is notable that before plaintiffs' counsel was even aware of the defendant's death, and thought she only had three years to commence the action, she waited until the day before the statute expired (December 15, 2011) to file the summons and complaint. Plaintiffs' counsel conceded she had full and complete knowledge of the black letter law regarding timely commencement, and she also knew no later than April 11, 2012 that the defendant had died. Therefore, at a minimum she knew from April 11, 2012 until June 16, 2013 that the proper party was not sued and that she had time to timely file a proper action against a proper party.

The telephone conversation between Ms. Miserendino and Mr. Stewart of June 22, 2012 [*7]is the only evidence in the Record before this Court where a stipulation could have been agreed to, or for there to be some communication between the two that was calculated to mislead Ms. Miserendino. The parties' testimony regarding the June 22, 2012 conversation differs, but it is uncontroverted that none of the written communications between the parties ever addressed the statute of limitations. The Record fails to reveal evidence of an oral agreement or acts and conduct by Mr. Stewart calculated to mislead Ms. Miserendino.

Plaintiffs also assert that Hart v. Marriott International, Inc. (304 AD2d 1057 [3d Dept 2003]) is similar to the case at bar and supports their argument that the defendant's insurer's deceptive conduct should estop the defendant from asserting the statute of limitations defense. A close reading of Hart again reveals facts that are not similar enough to the present case for it to lend any persuasive effect. In Hart the conduct of the defendant and its insurer wrongly perpetuated plaintiff's impression that the defendant was the proper party served, thereby delaying timely commencement of the action against the proper party. The Court held plaintiff's reliance was reasonable and the defendant should be estopped from asserting the statute of limitations (see Hart, 304 AD2d at 1060-1061). The dissent in Hart stated that an insurance company has no affirmative duty to advise the plaintiff's attorneys they have sued the wrong party, but the majority opinion explained in a footnote that it is improper for a defendant's agent (insurer) to lull a plaintiff into sleeping on its rights (Hart, 304 AD2d at 1061). By contrast, Mr. Stewart and Merchant's Insurance did not lull the plaintiffs into any action or inaction. Plaintiffs' counsel knew the black-letter law and failed to timely commence against the proper party that she already knew the identity of. This is not a reasonable act or omission and there is insufficient proof of reliance upon Mr. Stewart's alleged representations necessary to estop defendant from asserting an available defense (compare Baltimore & Ohio Railroad v. County of Genesee, 112 AD2d 725 [4th Dept 1985]) (holding that equitable estoppel principles were applicable to preserve the rights of the plaintiff given the express prior representations made to the plaintiff).

The court in Arbelaez v. Wu (18 AD3d 583, 584 [2d Dept 2005]) held that an action commenced against a defendant that had already died was a nullity. In Arbelaez the defense attorney hired by the defendant's insurance company notably answered the complaint, but this still did not confer jurisdiction over the defendant's estate (see Arbelaez v. Wu, 18 AD3d at 584). The four and a half year statute of limitations (three years plus 18 extra months by statute) expired by the time the plaintiff sought to appoint a representative of the defendant's estate. The court rejected the plaintiff's argument that it was inequitable to dismiss the complaint as barred by the statute of limitations in part reasoning plaintiff was aware of the defendant's death with almost two years left on the statute of limitations (see Arbelaez v. Wu, 18 AD3d at 584).

Permitting the statute of limitations defense in an action where the defendant actually submitted an answer to the complaint far exceeds any evidence of alleged "deception" in the present case.

The defendant also relies upon Murphy v. Wegman's Food Markets, Inc. (140 AD2d 973, 974 [4th Dept 1988]) where the court held the plaintiff must show that the defendant engaged in protracted settlement discussions to lull the plaintiff into inactivity until after the statute expired to be entitled to estoppel. Murphy also held that there was no evidence the defendant was guilty of fraud or misrepresentation that would lull the plaintiff into a false sense of security (Murphy, 140 AD2d at 974).

In this case plaintiffs' counsel by her own admission knew the defendant was dead by [*8]April 11, 2012, and counsel was aware of this status with more than one year left on the 4 ½ year statute of limitations. Counsel knew who the proper party was and where to locate her because the Executrix was previously "served" with process. The argument that there is inequity or injustice by applying the transparent, black letter law of the statute of limitations in this case is not compelling. There is no evidence the defendant, by way of the conduct of Mr. Stewart and Merchant's, was fraudulent or deceptive or that Mr. Stewart's conduct was calculated to mislead the plaintiffs and Ms. Miserendino. There is also no compelling evidence that Ms. Miserendino was misled or that she reasonably relied on the conduct and actions of Mr. Stewart in delaying the commencement of the action. The plaintiffs were not lulled into inactivity or a false sense of security.

Upon review of the papers and the live testimony of Ms. Miserendino and Mr. Stewart, and treating the defendant's motion as one for summary judgment, this Court finds there are no bona fide issues of fact concerning the alleged misrepresentations which resulted in the plaintiffs' failure to institute a timely action and the doctrine of estoppel must not be applied (compare Dupuis v. Van Natten, 61 AD2d 293, 295-296 [3d Dept 1978]).

For all the foregoing, the plaintiffs' motion and all requests for relief contained therein are denied in their entirety, the defendant's motion is granted in its entirety, and the complaint is dismissed.

Accordingly, it is hereby:

ORDERED, that the plaintiffs' motion is denied in its entirety, and it is further

ORDERED, that the defendant's motion is granted in its entirety, and it is further

ORDERED, that the complaint is dismissed in its entirety, and it is further

ORDERED, that this shall constitute the Decision and Order of the Court, and no further Order is required. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.

DATED: December 28, 2016

Buffalo, New York

HON. PAUL B. WOJTASZEK

Justice of the Supreme Court Footnotes

Footnote 1:As a procedural note, it is not clear which party "moved" first as both applications are noticed as motions, and neither is noticed as a cross motion. Although the defendant attaches an affidavit of service reflecting September 9, 2015 service upon the plaintiffs, it appears the plaintiffs' motion was filed on September 8, 2015 and the defendant's motion was filed September 16, 2015. As such, the plaintiffs' motion is deemed to have been made first, although this ultimately has no substantive bearing on the relevant issues to be decided.

Footnote 2:Plaintiffs' counsel actually knew earlier, although the date is not clear, because the investigator learned the defendant was dead when he attempted to serve her and this was communicated to Ms. Miserendino who instructed the process server to investigate status.