Opinion
Index No. 508176/2018
03-22-2023
Klotilda Cacani, Plaintiffs, v. Sam Pucciarelli Co., Inc., Defendant(s).
Lesch & Lesch, P.C., Bronx (Keith B. Allen of counsel), for deceased plaintiff. Law Offices of Brian Rayhill, New York City (Kerrie Barry of counsel), for defendant.
Unpublished Opinion
Lesch & Lesch, P.C., Bronx (Keith B. Allen of counsel), for deceased plaintiff.
Law Offices of Brian Rayhill, New York City (Kerrie Barry of counsel), for defendant.
Aaron D. Maslow, J.
The following numbered papers were read on this motion: NYSCEF Document Numbers 34-39.
Upon the foregoing papers, and having heard oral argument, It is hereby ORDERED that the within motion is determined as follows:
Defendant moves for an order pursuant to CPLR 1021, dismissing the complaint on the ground that there has been a failure to timely appoint an administrator or other substitute in place and stead of Plaintiff, who is now deceased.
The Court notes that the attorneys for Plaintiff no longer represent her by operation of law (see Meehan v Washington, 242 A.D.2d 286 [2d Dept 1997]). Defendant's notice of this motion was sent to said attorneys only. However, said notice was deficient (see Gonzalez v Ford Motor Co., 295 A.D.2d 474 [2d Dept 2002]).
It is for this reason that during oral argument this Court rejected the application by counsel for the deceased Plaintiff to discontinue the action. (see Joseph D.H. v Commissioner of Social Security, 2022 WL 16757045 [WD NY 2022]).
"Counsel for defendant [ ] should do the necessary research required to ascertain the name and location of the deceased plaintiff's heirs, which would allow them to exercise one of two statutory exceptions to the stay that automatically results upon a party's death" (Pena v Rucon Properties, 19 Misc.3d 655 Sup Ct Bronx County 2008]).
It is noted that Defendant retained Premier Investigations, Inc. to confirm whether or not Plaintiff died. It found, inter alia, a GoFundMe page, organized by Mirela Kromollari, and the location of the cemetery where Plaintiff was interred. It stated:
We are unable to obtain a death certificate from the Bureau of Vital Statistics without authorization from a relative, Letters of Administration from plaintiff's counsel, etc.
If you would like for us to visit the funeral home to try and obtain further documentation, please so advise. Phone calls to the funeral home have gone unanswered.
Otherwise, we will hold our file in abeyance pending any further advise from your office. As you know, we sent to you this entire social media search in our February 1, 2021 correspondence, so we will not attach a copy at this time.
At oral argument, Defendant's counsel conceded that this offer from the investigative agency to continue its investigation was not pursued. Defendant's counsel should have instructed the investigative agency to continue because Plaintiff's heirs are entitled to receive notice of this motion especially where there is some information to start off with.
It is also noted that Defendant did not move for appointment of the appointment of an administrator, which it could have. A party may move for the appointment of a temporary administrator for the estate of a deceased adversary, thereby permitting an action to proceed (see Harding v Noble Taxi Corp., 155 A.D.2d 265 [1st Dept 1989]). But, again, this Court stresses that Defendant's counsel did not pursue research to ascertain any heirs of Plaintiff. Their investigation was limited merely to whether Plaintiff was deceased.
The within motion is denied without prejudice to renew by proposed order to show cause upon notice as directed by the Court at the time it reviews it, following Defendant's research into heirs. Counsel for Plaintiff prior to her demise shall cooperative in this research. If and when the motion is renewed by order to show cause, a copy of the death certificate shall be included along with a summary of the research conducted into identifying Plaintiff's heirs.
AND IT IS FURTHER ORDERED that the Clerk shall mark this action as STAYED (see Gonzalez v Ford Motor Co.).