Vandeyar v Jenkins

[*1] Vandeyar v Jenkins 2018 NY Slip Op 50703(U) Decided on April 16, 2018 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2018
Supreme Court, Queens County

Yonelle Vandeyar, Plaintiff,

against

Solomon Jenkins and Chavaun Jenkins, Defendants.



70303356/2016



For Plaintiff: Paul Ajlouny & Associates, by Edward J. Nitkewicz, Esq., Senior Trial Counsel, Of Counsel, 320 Old Country Road, suite 205, Garden City, NY 11530

For Defendant Chavaun Jenkins: Mendolia & Stenz, by Stephen A. Murray, Esq., 875 Merrick Avenue, Westbury, NY 11590-6603
Salvatore J. Modica, J.

The following numbered papers read on this application by plaintiff to vacate a stay imposed on November 30, 2016, as a result of defendant Solomon Jenkins's death, and the cross motion by defendant Chavaun Jenkins to lift the stay or, alternatively, sever the action against this defendant.

Papers Numbered

Order to Show Cause - Affidavits - Exhibits NYSCEF Doc. Nos. 15-25

Notice of Cross Motion - Affidavits - Exhibits NYSCEF Doc. Nos. 26-31

Reply Affidavits NYSCEF Doc. Nos. 35-36

This action was commenced on March 15, 2016. Solomon Jenkins, however, died on June 24, 2015, prior to the commencement of the litigation. Although the death of a party will divest the court of jurisdiction to conduct proceedings (CPLR 1015[a]; Aurora Bank FSB v Albright, 137 AD3d 1177 [2d Dept 2016]; Vapnersh v Tabak, 131 AD3d 472 [2d Dept 2015]), an action instituted against a dead person is a nullity. (See, US Bank N.A. v Cadeunag, 147 AD3d 881 [2d Dept 2017] ["Since a party may not commence a legal action or proceeding against a dead person, the 2009 action was a nullity from its inception, and the plaintiff was instead required to commence an action against the personal representative of the decedent's estate."]; Krysa v Estate of Qyra, 136 AD3d 760 [2d Dept 2016]; Zervis v. N.Y.C. Health and [*2]Hosp. Corp., 2018 WL 1697276 [Sup. Ct. Queens County 2018] [Kerrigan, J.] ["Since a dead person may not sue or be sued, this action commenced after the death of Maryann Zervas . . . is a nullity.").

Therefore, upon the foregoing enumerated papers, the Court vacates the previously imposed stay and decides that the substitution of a personal representative is not required under CPLR 1021.

The Court orders the Clerk of the Court to amend the caption by deleting Solomon Jenkins as a named party. The amended caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

X

Index Number 70303356/2016

YONELLE VANDEYAR,

Plaintiff,

against-

CHAVAUN JENKINS,

Defendant.

X

Accordingly, plaintiff's motion is granted, and defendant's cross motion is denied.

Plaintiff is directed to serve amended pleadings in conformance with this order on defendant Chavaun Jenkins within 30 days after service of a copy of this order with notice of entry. The parties are further directed to expeditiously proceed with disclosure.

All other requests are denied.

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

Dated: April 16, 2018
Jamaica, New York
Honorable Salvatore J. Modica
J.S.C.