Opinion
Index No. 656279/2018
05-18-2020
Gabriel TOP, Plaintiff, v. Renee GLICKLICH, as Temporary Administrator of the Estate of Dana Nadia Glicklich et al., Defendants.
Seward & Kissel LLP, New York, NY (Shrey Sharma of counsel), for plaintiff. McLaughlin & Stern, LLP, New York, NY (Laura Joy Lattman of counsel), for defendant.
Seward & Kissel LLP, New York, NY (Shrey Sharma of counsel), for plaintiff.
McLaughlin & Stern, LLP, New York, NY (Laura Joy Lattman of counsel), for defendant.
Gerald Lebovits, J.
Plaintiff commenced this action for breach of fiduciary duty, fraud in the inducement, and unjust enrichment against several defendants, including Renee Glicklich. Plaintiffs named Glicklich both in her individual capacity and in her representative capacity as temporary administrator of the estate of her late mother, Dana Glicklich.
Defendants moved to dismiss this action, or alternatively to remove the action to Surrogate's Court (which is currently adjudicating probate proceedings related to Dana Glicklich's estate). Defendants' motion (motion sequence 001) is fully briefed, has been taken on submission, and remains pending before this court.
The parties recently contacted this court to notify it that after motion sequence 001 had been fully submitted, Renee Glicklich was qualified as executor of Dana Glicklich's estate, rather than temporary administrator. Plaintiff's complaint, though proper when originally pleaded, thus no longer names a proper representative for the estate. During a telephone conference with the court, the parties differed as to the appropriate way to remedy this problem. This court therefore requested letter briefing on the issue. The parties filed letters on May 15, 2020 (see NYSCEF Nos. 63, 64), and the court issues this order to resolve their disagreement.
In brief, plaintiff proposes that this court substitute, sua sponte, Renee Glicklich in her capacity as executor of Dana Glicklich's estate for Renee Glicklich in her capacity as temporary administrator of the estate. Alternatively, plaintiff has expressed a willingness to file a motion seeking that substitution. Defendants contend that this issue underscores why (as defendants argued on motion sequence 001) plaintiff's claims here are best adjudicated in Surrogate's Court. Defendants also note that any method of substitution must take into account the need for this court to obtain personal jurisdiction over Renee Glicklich in her capacity as executor.
This court declines at this time defendants' invitation, in effect, to remove this action to Surrogate's Court. That matter is more appropriately left for this court's resolution of motion sequence 001 once Renee Glicklich's representative capacity has been satisfactorily addressed. But defendant is correct that the issue of capacity raises tricky questions of authority and personal jurisdiction.
Plaintiff asserts that under CPLR 1003 this court may sua sponte substitute in Renee Glicklich in her capacity as executor. This court is not so certain.
The current form of CPLR 1003 stems from a 1996 amendment. Prior to that amendment, the rule provided that "[p]arties may be added or dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just." The 1996 amendment struck "may be added" from this sentence of the rule. It also added a new sentence, providing that at this stage of the action (i.e. , more than 20 days after service of a CPLR 3211 motion to dismiss the complaint), "[p]arties may be added ... by leave of court or by stipulation of all parties who have appeared." (See L 1996, ch. 39, § 2).
The Third Department, after carefully considering the change in language of CPLR 1003, held that the 1996 amendment divested courts of their power to sua sponte add parties at any stage of the action. (See New Medico Assoc. v. Empire Blue Cross & Blue Shield , 267 AD2d 757, 758-759 [3d Dept. 1999].) Absent a contrary decision of the Court of Appeals or the First Department, the Third Department's holding is binding here. (See D'Alessandro v. Carro , 123 AD3d 1, 6 [1st Dept. 2014].) And this court finds the Third Department's analysis persuasive in any event.
Plaintiff's letter brief does not identify such a contrary decision. At most, plaintiff points to two decisions of the Appellate Division, Second Department. But one of those decisions, Westbury Prop. Inv. Co. v. Estate of Pergament (23 AD3d 458, 458 [2d Dept. 2005] ), simply records the fact of the sua sponte substitution, without discussing the circumstances under which the court substituted the defendant or the basis of the court's authority to do so. Similarly, in O'Brien v. Town of Huntington (308 AD2d 479, 481 [2d Dept. 2003] ), the Second Department noted that the equities favored the trial court's decision to deny defendant's motion to dismiss for failure to join a necessary party, then went on to say, without elaboration, that "[n]evertheless," the trial court's decision to sua sponte add certain additional defendants was "under the particular circumstances of this case, a provident exercise of its discretion." The Second Department neither further explained this conclusion, nor identified the source of the trial court's authority to add defendants sua sponte, nor addressed the Third Department's decision in New Medico Associates . (See id. )
Additionally, the CPLR provisions that specifically address substitution do not confer power on this court to add sua sponte Renee Glicklich as executor of her mother's estate. (See CPLR 1015 - 1020.) Most tellingly, CPLR 1015, addressing the substitution of an estate fiduciary, permits a court to act sua sponte only where a plaintiff has died—not where one type of estate fiduciary has been replaced by another.
This court therefore concludes that the substitution that plaintiff is seeking here can be ordered only on the motion of a party, rather than on this court's own initiative.
As defendant points out, though, substituting in Renee Glicklich as executor is, formally speaking, adding her as a new party to the action. To permit this court to exercise personal jurisdiction over Glicklich in her new representative capacity, plaintiff must serve the motion for leave to substitute on Glicklich-as-executor "in accordance with CPLR article 3." ( Horseman Antiques, Inc. v. Huch , 50 AD3d 963, 964 [2d Dept. 2008]. )
As Horseman Antiques itself suggests, it might be most expedient for plaintiff to serve Glicklich personally-by-mail, under CPLR 312-a. (See 50 AD3d at 964.) To be sure, such service is rendered ineffective if the recipient does not sign and return the acknowledgement of service receipt. (See Ananda Capital Partners v. Stav Elec. Sys. (1994) , 301 AD2d 430, 430 [1st Dept. 2003].) But if plaintiff does serve a motion for leave to substitute by this method, this court would look with disfavor on any effort by defendants to thwart the completion of service by failing to return a signed acknowledgement of receipt.
Finally, plaintiff's letter brief criticizes defendants' failure to serve necessary subpoenas on third parties. Defendants have contended that they currently cannot serve subpoenas seeking information about decedent Dana Glicklich, because absent substitution, there is no defendant with the representative authority to issue such subpoenas. They acknowledge, though, that they could have, but did not, issue subpoenas while Renee Glicklich remained temporary administrator. Regardless, this court need not—and does not—resolve here any dispute relating to discovery. Those disputes are better left for resolution following Renee Glicklich's substitution as executor, if they then persist.
Accordingly, it is hereby
ORDERED that plaintiff's request, by letter dated May 15, 2020, for this court on its own motion to substitute Renee Glicklich as defendant in her representative capacity as executor of her mother's estate for Renee Glicklich as defendant in her representative capacity as temporary administrator of her mother's estate, is denied; and it is further
ORDERED that plaintiff may within 30 days from entry of this order move for leave of this court to make that substitution, with service of any motion to be made on Glicklich-as-executor in accordance with CPLR article 3.