McEwen v JP Morgan Chase & Co.

Annotate this Case

Download PDF

McEwen v JP Morgan Chase & Co. 2019 NY Slip Op 33099(U) October 17, 2019 Supreme Court, New York County Docket Number: 161802/2015 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/18/2019 10:36 AM NYSCEF DOC. NO. 104 INDEX NO. 161802/2015 RECEIVED NYSCEF: 10/18/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART IAS MOTION 2EFM Justice ----------------------------------------------------------------------------X INDEX NO. 161802/2015 MOTION SEQ. NO. 003 and 004 CECIL MCEWEN, Plaintiff, -vJP MORGAN CHASE & CO., DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------------------X JP MORGAN CHASE & CO., Third-Party Index No. 595484/2017 Plaintiff, -againstJONES LANG LASALLE AMERICAS, INC., Defendant. --------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 94, 95, 98, 100 were read on this motion to/for DISMISSAL The following e-filed documents, listed by NYSCEF document number (Motion 004) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 96, 97, 99, 101, 102 were read on this motion to/for DISMISSAL Motion sequence numbers 003 and 004 are hereby consolidated for disposition. In this personal injury action, third-party defendant Jones Lang LaSalle Americas. Inc. and defendant JP Morgan Chase & Co. move. pursuant to CPLR 1021 (motion sequence numbers 003 and 004, respectively), to dismiss the complaint against them. After a review of the motion papers, as well as a review of the relevant statutes and case lmv, the motions, which are unopposed, are decided as follows. 161802/2015 MCEWEN, CECIL vs. JP MORGAN CHASE & CO. Motion No. 003 004 1 of 5 Scanned to NeW York EF on - -- Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 10/18/2019 10:36 AM NYSCEF DOC. NO. 104 INDEX NO. 161802/2015 RECEIVED NYSCEF: 10/18/2019 FACTUAL AND PROCEDURAL BACKGROUND: Plaintiff Cecil McEwen commenced this trip and fall action against defendant JP Morgan Chase & Co. (JP Morgan) by filing a summons and verified complaint on November 16, 2015. Doc. 1. JP Morgan joined issue by its answer filed. February 23, 2016. Doc. 3. On .June 15. 2017. JP Morgan commenced a third-party action against Jones Lang LaSalle Americas. Inc. (JLL). Doc. 23 . .ILL joined issue by service of its answer to the third-party complaint filed September I. 2017. Doc. 38. Plaintiff passed away on July 28. 2018. Doc. 66 at par. I. By correspondence dated October L 2018, JLL's attorney wrote to this Court to request a stay of the action atler he was advised by plaintiffs counsel that plaintiff had passed away and that none of plaintiffs next of kin intended to file an estate. Doc. 63. On November 20. 2018. plaintiffs counsel wrote to this Court confirming that plaintiff had passed away and representing that ''ft]here [was] no intention to even raise an [c]state.'· Doc. 64. On June 5. 2019, .TLL moved (motion sequence 003) to dismiss the complaint. with prejudice, pursuant to CPLR t 021 based on plaintiffs failure to timely substitute a proper party as plaintiff Doc. 66. The motion was served on the deceased p/a;n1Ufhy regular and certified mail at his last known address. Doc. 79. .TLL subsequently filed an amended notice of motion for the same relic[ also served on the deceased plaintiff; hy regular and ce11ified mail at his last known address. Do1:. 95. The motion was not served on JP Morgan. On June I 0, 2019, JP Morgan moved (motion sequence 004 ). pursuant to CPLR I 021. to dismiss the complaint, with prejudice, for failing to timely substitute a proper party for the deceased plaintiff. Doc. 80. The motion was served on the deceased plainf(f( hy regular and certified mail at his last known address and was served by email on counsel for plaintiff and 161802/2015 MCEWEN, CECIL vs. JP MORGAN CHASE & CO. Motion No. 003 004 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 10/18/2019 10:36 AM NYSCEF DOC. NO. 104 INDEX NO. 161802/2015 RECEIVED NYSCEF: 10/18/2019 counsel for JLL. Doc. 93. JP Morgan filed an amended notice of motion on June 19, 2019 which \vas served 011 the deceased plaint~ffby regular and certified mail at his last known address and served by email on counsel for the deceased plaintiff and JLL. Doc. 97. On or about August I 5, 20 I 9, the defendants were directed by this Court to "make efforts to locate a family member or next of kin in order to provide them with a copy of the pending motions to dismiss." Doc. 10 I at par. 4. After a search by counsel revealed that the deceased plaintiffs next of kin were his wife, Janince McEwen, and his adult son, Ruskin McEwen, JP Morgan's motion was amended to be served, by regular and ce11ified mail, on those individuals. Doc. I 0 I at pars. 4-6. On August 28, 20 I 9, JLL served its amended notice of motion on Ruskin McEwen and Janince McEwen by regular and certified mail at their last known address. Docs. 98, 100. On August 29, 2019, JP Morgan served its amended notice of motion on Ruskin McEwen and Janince McEwen by regular and certified mail at their last known address. Doc. 98. On or about October 16, 2019, counsel for JP Morgan filed an affirmation in further support of JP Morgan's motion to dismiss. Doc. I 0 I. In the affirmation, counsel for JP Morgan argues that, since Janince McEwen and Ruskin McEwen never responded to the motion to dismiss, the complaint must be dismissed as against said defendant. Doc. I OJ at pars. 7-9. LEGAL CONCLUSIONS: "It is well settled that the death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR I 015(a), and any order rendered after the death of a party and before the substitution of a legal representative is void." Griffin v Man11ing, 36 AD3d 530, 532 (1st Dept. 2007). Additionally, CPLR 1015(a) 161802/2015 MCEWEN, CECIL vs. JP MORGAN CHASE & CO. Motion No. 003 004 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 10/18/2019 10:36 AM NYSCEF DOC. NO. 104 INDEX NO. 161802/2015 RECEIVED NYSCEF: 10/18/2019 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 pai1ies." CPLR I 021 provides, in pertinent pai1, that: if the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding f m1her, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed. In deciding a motion to dismiss a claim for failure to timely substitute a proper party for a deceased plaintiff under CPLR I 02 l and 1OJ5(a). a court "may not order dismissal for such failure without first ordering the persons interested in the decedent's estate to show cause why the action should not be dismissed." Petty v Meadowbrook Distributing Corp 266 AD2d 88 (I st Dept 1999). CPLR I 021 thus "'requires a motion by order to show cause, with court-directed notice to the 'persons interested in the decedent's estate,' as to why the action ... should not be dismissed. Such notice is a jurisdictional prerequisite to the court's consideration of a motion to dismiss. Gonzalez v Ford ,'fotor Co., 295 AD2d 474 (2d Dept 2002)." Alexander and Girese, Practice Commentaries, McKinney's Cons Laws of NY, CPLR Cl021:2. Although this Court acknowledges that JLL and JP Morgan attempted to provide notice of their respective motions to the deceased plaintiffs next of kin, this Court is without jurisdiction to consider their applications since they were not brought by order to show cause. Therefore, in light of the foregoing, it is hereby: 161802/2015 MCEWEN, CECIL vs. JP MORGAN CHASE & CO. Motion No. 003 004 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 10/18/2019 10:36 AM NYSCEF DOC. NO. 104 INDEX NO. 161802/2015 RECEIVED NYSCEF: 10/18/2019 ORDERED that the motion by third-party defendant Jones Lang LaSalle Americas, Inc. (motion sequence 003) seeking to dismiss the complaint pursuant to CPLR 1021 is denied without prejudice to said defendant proceeding by order to show cause on notice as required by that statute; and it is further ORDERED that the motion by defendant JP Morgan Chase & Co. (motion sequence 004) seeking to dismiss the complaint pursuant to CPLR I 021 is denied without prejudice to said defendant proceeding by order _to show cause on notice as required by that statute: and it is further ORDERED that this constitutes the decision and order of the court. I. I 0117/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 161802/2015 MCEWEN, CECIL vs. JP MORGAN CHASE & CO. Motion No. 003 004 5 of 5 Fl GRANTED IN PART SUBMIT ORDER . FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 5 of 5

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.