Opinion
03-30-2017
Russell W. ROSEN, et al., Plaintiffs–Appellants, v. Jonathan SCHWARTZ, Defendant–Respondent.
Warshaw Burstein, LLP, New York (Linda Genero Sklaren of counsel), for appellants. Goldfarb Abrandt Salzman & Kutzin LLP, New York (Michael S. Kutzin of counsel), for respondent.
Warshaw Burstein, LLP, New York (Linda Genero Sklaren of counsel), for appellants.
Goldfarb Abrandt Salzman & Kutzin LLP, New York (Michael S. Kutzin of counsel), for respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered February 29, 2016, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the complaint reinstated.
Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5–4.1, since an insane person may be liable in tort for his actions (see Hirsch v. Mastroianni, 80 A.D.2d 633, 634, 436 N.Y.S.2d 87 [2d Dept.1981] ; Albicocco v. Nicoletto, 11 A.D.2d 690, 204 N.Y.S.2d 566 [2d Dept.1960], affd. 9 N.Y.2d 920, 217 N.Y.S.2d 91, 176 N.E.2d 100 [1961] ). A wrongful death claim was also stated on behalf of defendant's brother, who committed suicide after his mother's murder. To the extent Supreme Court decided whether defendant may inherit from his mother's estate, no ruling on that question was sought by plaintiffs, and, in any event, the ruling was not only premature, but should be determined in the Surrogate's Court (see e.g. Matter of Demesyeux, 42 Misc.3d 730, 978 N.Y.S.2d 608 [Sur.Ct., Nassau County 2013] ).
TOM, J.P., MOSKOWITZ, FEINMAN, GISCHE, KAPNICK, JJ., concur.