Opinion
No. 626/97.
2010-08-11
David COHEN, as Personal Representative of the Estate of Samuel P. Cohen, deceased, Plaintiff, v. Elihu ROMANOFF, Defendant.
Craner Satkin, Scotch Plains, NJ, for Plaintiff. Jack Kint, Esq., New York City, for Defendant.
Craner Satkin, Scotch Plains, NJ, for Plaintiff. Jack Kint, Esq., New York City, for Defendant.
ARTHUR M. SCHACK, J.
Defendant ELIHU ROMANOFF (ROMANOFF) moves, by order to show cause, to set aside and vacate this Court's April 13, 2010 order, by which the Court sua sponte substituted as plaintiff in this action, DAVID COHEN as personal representative of the Estate of SAMUEL P. COHEN (COHEN), deceased, nunc pro tunc to April 19, 2009. April 19, 2009 was the day prior to when defendant ROMANOFF moved to vacate the default judgment against him in the instant action. ROMANOFF's motion to vacate the subject default judgment and dismiss this action was granted on July 10, 2009, upon plaintiff's default in appearing. The Court, on September 25, 2009, denied plaintiff's order to show cause to vacate his July 10, 2009 default and dismissal of the instant case. Further, in my April 13, 2010 decision and order, published on-line by the Official State Reporter, at 27 Misc.3d 1208(A), I denied plaintiff's motion for leave to renew or reargue my September 25, 2009 default. The net effect of this protracted litigation is that plaintiff's default in appearing to oppose vacating the default judgment remains, the judgment against defendant ROMANOFF is vacated and the instant action is dismissed.
However, in the order to show cause now before the Court, defendant ROMANOFF objects to the Court's substitution of decedent COHEN's son as personal representative of decedent COHEN's estate and being substituted as plaintiff. In my April 13, 2010 decision, at *3, I held:
The Court is faced with a threshold issue of whether the failure to substitute plaintiff's estate for the decedent-plaintiff precluded the Court from determining defendant's motion, made on April 20, 2010, to vacate his default. ( See Wisdom v. Wisdom, 111 A.D.2d 13, 14 [1985) ]. This instant action was commenced on January 7, 1997. On May 9, 1997, a default judgment was entered in favor of plaintiff and against defendant. It is undisputed that COHEN died in November 1997 and plaintiff's son, DAVID COHEN, was appointed in 1998 as personal representative of his estate. When a cause of action continues after the death of a party, the death of a party stays the action pending the substitution of a legal representative for the estate. (CPLR § 1015). The Court is divested of jurisdiction to act rendering any determination made without such a substitution. (Matter of Einstoss, 26 N.Y.2d 181 [1970] ). “A motion for substitution may be made by the successors or representatives of a party or by any party.” (CPLR § 1021). However, CPLR § 1015(a) provides the “[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.” Therefore, pursuant to CPLR § 1015(a), the Court has the authority to sua sponte order the substitution of the personal representative of decedent's estate as plaintiff. ( See Paul v. Ascher, 106 A.D.2d 619, 621 [2d Dept 1984] ). Further, “where a party's demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.” (Paterno v. CYC, LLC, 46 AD3d 788 [2d Dept 2007] ). Therefore, DAVID COHEN, as personal representative of the Estate of SAMUEL P. COHEN, deceased, is substituted as plaintiff in the instant action, nunc pro tunc to April 19, 2009, the day prior to defendant ROMANOFF's making of his motion to vacate the subject default judgment. The caption in the instant action is amended to:
_________________________
DAVID COHEN, as Personal Representative of the Estate of SAMUEL P. COHEN, deceased, Plaintiff,
–against–Index No. 626/97
ELIHU ROMANOFF, Defendant.
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The Court relied upon CPLR § 1015 to substitute the plaintiff, because the judgment obtained by COHEN against ROMANOFF was granted prior to COHEN's death and with COHEN's death the judgment “is not thereby extinguished.” The Court did not find ROMANOFF prejudiced by this substitution and COHEN's demise did not affect the merits of the case. Defendant ROMANOFF's papers in support of the instant order to show cause are unpersuasive.
It appears that the instant order to show cause is nothing more than an attempt to provide defendant ROMANOFF with an insurance policy against the possibility that the Appellate Division, Second Department will reverse my July 10, 2009 decision and order, which granted ROMANOFF's motion, upon plaintiff's default, to: vacate defendant ROMANOFF'S default; dismiss the action for lack of personal jurisdiction over defendant; and, set aside a garnishment notice and information subpoenas served upon defendant by plaintiff's counsel.
Conclusion
Accordingly, it is
ORDERED, that defendant ELIHU ROMANOFF's order to show cause, to set aside and vacate this Court's order of April 13, 2010, by which the Court sua sponte substituted as plaintiff in this action, DAVID COHEN as personal representative of the Estate of SAMUEL P. COHEN (COHEN), deceased, nunc pro tunc to April 19, 2009, is denied.
This constitutes the Decision and Order of the Court.