Naumova v West 62nd St. LLC

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Naumova v West 62nd St. LLC 2020 NY Slip Op 30414(U) February 5, 2020 Supreme Court, New York County Docket Number: 153300/2016 Judge: Laurence L. Love 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 02/13/2020 03:34 PM NYSCEF DOC. NO. 38 INDEX NO. 153300/2016 RECEIVED NYSCEF: 02/13/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LAURENCE L. LOVE PART IAS MOTION 62 INDEX NO. ·153300/2016 Justice ---------------------------------------------------------------------------------X MARINA NAUMOVA, Plaintiff, -vWEST 62ND STREET LLC, GLENWOOD MANAGEMENT CORP.,· Defendant. MOTION DATE 06/05/2019, 06/10/2019, 08/13/2019 MOTION SEQ. NO. 001 002 003 DECISION + ORDER ON MOTION ------------------------------------------------------------~--------------------X WEST 62ND STREETLLC, GLENWOOD MANAGEMENT CORP. Third-Party Index No. 595772/2016 Plaintiff, -againstTHE CITY OF NEW YORK Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19,20,24,25,28,29,30, 31 DISMISSAL were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23 were read on this motion to/for DISMISSAL The following e-filed documents, listed by NYSCEF document number (Motion 003) 26, 27, 32, 33, 34, 35 RETENTION/RELEASE were read on this motion to/for Upon the foregoing documents, Plaintiff Marina Naumova was allegedly caused to trip and fall at J60 West 62"d Street, New York, New York, on October 27, 2015 around 3:00 pm. Injuries included left knee tears of 153300/2016 NAUMOVA, MARINA vs. WEST 62ND STREET LLC Motion No. 001 002 003 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 02/13/2020 03:34 PM NYSCEF DOC. NO. 38 INDEX NO. 153300/2016 RECEIVED NYSCEF: 02/13/2020 the anterior and posterior cruciate ligaments, left knee tears of the medial and lateral menisci, and left knee tear of the lateral collateral ligament. This action was commenced by the filing of a summons and complaint on April 19, 2016. Issue was joined by service of defendants' answer, West 62nct Street LLC and Glenwood. Management Corp., on June 27, 2016. A third-party summons and complaint were served on defendant City of New York on or about October 17, 2016. A preliminary.conference was held on·December 14, 2016, scheduling physical exams, medical report authorizations, and other disclosure. A case scheduling order dated April 6, 2017 sets a deposition date for plaintiff on June 13, 2017, and a compliance conference for July 20, 2017. A stipulation dated August 31, 2017 sets a deposition date of plaintiff for November 28, 2017. On November 21, 2017 plaintiff passed away. On June 28, 2018, a compliance conference was ordered adjourned to October 11, 2018 because of plaintiffs failure to appear. On June 5, 2019 Glenwood Management Corp. and West 62 Street, LLC moved to dismiss, per CPLR 1021, because no motion has been made in a reasonable and timely manner to substitute a representative to represent the estate of plaintiff Marina Naumova. The City of New York, on June 5, 2019, also moved to dismiss the complaint, per CPLR 1021; due to the failure to reasonably and timely substitute a representative. Plaintiffs counsel, moved by order to show cause to relieve the law firm of Miguel A. Ruiz, and for a temporary stay of the matter so the deceased plaintiffs parents, Valeriy Naumov and/or Tatyana Lopatina, may retain replacement counsel and appoint an administrator to the estate of Marina Naumova. 153300/2016 NAUMOVA, MARINA vs. WEST 62ND STREET LLC Motion No. 001 002 003 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 02/13/2020 03:34 PM NYSCEF DOC. NO. 38 INDEX NO. 153300/2016 RECEIVED NYSCEF: 02/13/2020 If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of.the proper parties (see CPLR 1015[a]). Upon the death of one or more of the plaintiffs ... in an action in which the right sought to be enforced survives only to the surviving plaintiffs ... , the action does not abate. The death shall be noted on the record and the action shall proceed (see CPLR 1015[b]). If the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, 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 (see CPLR 1021). The last sentence of CPLR 1021 provides special protection for the estate of a deceased plaintiff where the opponent seeks dismissal of the action based on the estate's failure to make a timely substitution. The statute 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 or appeal should not be dismissed. Such notice is a jurisdictional prerequisite to the court's consideration of the motion to dismiss (see Gonzalez v. Ford Motor Co., 295 AD2d 474 [2d Dept 2003]). Notice solely to the attorney previously representing the decedent is ineffective because the decedent's death revokes such attorney's authority to act (see Rumola v. Maimonides Medical Center, 37 AD3d 696 [2d Dept 2007]). Counsel for the party seeking dismissal must do sufficient research to identify and locate the decedent's heirs so that proper notice can be given (see Pena v. Rucon Properties, LLC,19 Misc3d 655 [Sup Ct Bronx Co 2008]). If proper notice is given to the persons interested in the decedent's estate, the court may then effectively proceed to decide the motion to dismiss (see Thomas v. Benedictine Hosp, 8 AD3d 781 [3d Dept, 2004]; Hyman v. Booth Mem. Hosp, 306 AD2d 438 [2d Dept 2003]). If the 153300/2016 NAUMOVA, MARINA vs. WEST 62ND STREET LLC Motion No. 001 002 003 3 of 4 Page 3 of 4 .. [*FILED: 4] NEW YORK COUNTY CLERK 02/13/2020 03:34 PM NYSCEF DOC. NO. 38 INDEX NO. 153300/2016 RECEIVED NYSCEF: 02/13/2020 " event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate (see CPLR 1021). Defendants' motion to dismiss was not brought by order to show cause and is premature as a proper substitute has not been provided. Plaintiffs order to show cause to be relieved of counsel does not show service upon the proper parties interested in this litigation. In fact, the Court would have expected counsel to have begun the process of seeking estate representatives by this time so a proper substitution could occur. ORDERED that the defendants' motions to dismiss the complaint for failure to timely substitute the administrator or an executor of plaintiffs estate is DENIED without prejudice. ORDERED that plaintiffs order to show cause to be relieved of counsel is DENIED. ORDERED this litigation is stayed until plaintiff has been properly substituted by a family member, an administrator, or a suitable representative. 2/5/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ . CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153300/2016 NAUMOVA, MARINA vs. WEST 62ND STREET LLC Motion No. 001 002 003 4 of 4 D D OTHER REFERENCE Page 4 of 4

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