Opinion
62055
02-01-2018
Yvonne DEVINE and Rae E. Clarke, Plaintiffs, v. Peter SLUCK d/b/a Precision Construction, Steve Bonhote d/b/a Precision Construction and Precision Construction Plus, LLC, Defendants.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel), for plaintiffs. Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Kostas D. Leris of counsel), for defendants.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel), for plaintiffs.
Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Kostas D. Leris of counsel), for defendants.
Robert J. Muller, J.
Plaintiff Rae E. Clarke (hereinafter decedent) was the owner of certain real property located at 72 Indiana Avenue in the Town of Queensbury, Warren County. She resided there with her daughter and caretaker, plaintiff Yvonne Devine (hereinafter plaintiff). In November 2014, Devine hired defendant Steve Bonhote—doing business as Precision Construction—to perform certain renovations to the property. Plaintiffs were not satisfied with these renovations and, in September 2015, commenced this action for breach of contract and unjust enrichment. Issue was subsequently joined and limited discovery exchanged. Decedent then passed away on March 14, 2016.
Between April 2016 and April 2017, counsel for defendants—Kostas D. Leris, Esq. of Napierski, VanDenburgh, Napierski & O'Connor, LLP—sent seven letters to then counsel for plaintiff—Linda Richardson, Esq. of the Law Offices of Kimberly M. Wells—requesting that she take the necessary steps to substitute decedent's estate in the action. With no response, defendants then filed a motion by Order to Show Cause on June 16, 2017 seeking to dismiss the complaint with respect to decedent based upon plaintiff's failure to file a motion for substitution (see CPLR 1021 ). While no written opposition to the motion was filed, Kimberly M. Wells, Esq. appeared at oral argument on July 13, 2017 and advised that she had discovered a conflict of interest which precluded her continued representation of plaintiff. The Court then adjourned the return date of defendants' motion to September 20, 2017 so as to provide plaintiff with an opportunity to retain new counsel. The Court further directed Ms. Wells to file an application with Surrogate's Court for the appointment of an administrator for decedent's estate.
On August 14, 2017, Surrogate's Court issued Letters Testamentary appointing plaintiff as executrix of decedent's estate. Karla Williams Buettner, Esq. of Bartlett, Pontiff, Stewart & Rhodes, P.C. was then substituted as counsel for plaintiff by a consent to change attorney filed on August 30, 2017. Ms. Buettner inquired as to whether defendants would be willing to withdraw their motion and stipulate to the substitution of plaintiff—as executrix of decedent's estate—for decedent in the action. Defendants declined, however, and plaintiff then filed opposition to the motion and cross-moved for substitution (see CPLR 1015 [a] ). The motion and cross motion are addressed ad seriatim .
Defendants' Motion
Defendants contend that the complaint must be dismissed pursuant to CPLR 1021, which section provides as follows:
"If ... 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. [I]f 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."
" ‘The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has merit’ " ( Reed v. Grossi , 59 AD3d 509, 511 [2009], quoting McDonnell v. Draizin , 24 AD3d 628, 628–629 [2005] ; accord Borruso v. New York Methodist Hosp. , 84 AD3d 1293, 1294 [2011] ).
With respect to the first factor, defendants contend that plaintiff was not diligent in seeking substitution. Specifically, defendants contend that Attorney Richardson ignored the several letters sent by counsel for defendants and ultimately waited more than a year to seek substitution.
In opposition, plaintiff essentially concedes that she was not diligent in seeking substitution. Plaintiff, however, contends that the delay resulted from law office failure. Ms. Wells has submitted an affidavit in support of this contention, stating that the case "was originally assigned to [her] legal partner ..., Philip Perry, Esq., who ... took a position as assistant county attorney in Warren County" in November 2015. Ms. Wells further states that Ms. Richardson—her associate—then worked on the file, but she left the firm in June 2017. According to Ms. Wells, the file fell through the cracks as a result of the attorneys' respective departures.
Under these circumstances the Court is unwilling to characterize the admitted lack of diligence as law office failure (see Borruso v. New York Methodist Hosp. , 84 AD3d at 1294 ). Indeed, Ms. Wells entirely overlooks the fact that Ms. Richardson left more than a year after decedent's death. She offers no explanation as to why Ms. Richardson failed to file an application for the appointment of an administrator during that time—nor why Ms. Richardson failed to respond to any of the letters sent by defense counsel.
With respect to the second factor, however, defendants have not suffered—nor do they claim to suffer—any prejudice as the result of plaintiff's delay in seeking substitution. Indeed, while the parties have exchanged limited discovery, no depositions have been held nor experts retained.
Finally, insofar as the third factor is concerned, there is no discussion of the merits of the case in the motion papers. Rather, all of the parties' respective contentions center around the timeliness of the substitution.
In view of the absence of any showing of prejudice and the strong public policy favoring resolution of cases on the merits, defendants' motion to dismiss is denied (see White v. Diallo , 156 AD3d 664, 664 [2017] ; Reed v. Grossi , 59 AD3d at 511–512 ; Rubino v. Krasinski , 54 AD3d 1016, 1017 [2008] ; Johnson v. Trivedi , 41 AD3d 1259, 1260 [2007] ; Encalada v. City of New York , 280 AD2d 578, 578–579 [2001] ).
The Court also notes that plaintiff's 19–month delay in filing a motion for substitution does not constitute an unreasonable length of time as a matter of law (see Rosenfeld v. Hotel Corp. of Am. , 20 NY2d 25, 29 [1967] [2–year delay reasonable]; White v. Diallo , 156 AD3d at 664 [18–month delay reasonable] ; Johnson v. Trivedi , 41 AD3d at 1260 [2–year delay reasonable] ; compare Alejandro v. North Tarrytown Realty Assoc. , 129 AD3d 749, 749–750 [2015] [6 ½–year delay unreasonable]; Borruso v. New York Methodist Hosp. , 84 AD3d at 1294 [8–year delay unreasonable] ; McDonnell v. Draizin , 24 AD3d at 629 [4–year delay unreasonable] ). Indeed, while plaintiff was not diligent in her initial efforts to seek substitution, Ms. Wells complied fully with the Court's directive at oral argument and promptly filed the necessary application in Surrogate's Court to secure plaintiff's appointment as executrix of decedent's estate. Further, once substituted as counsel for plaintiff, Ms. Buettner promptly filed the cross motion for substitution.
Briefly, although not raised in the opposition papers, it is worth observing that the Court is likely without jurisdiction to decide this motion for dismissal in any event (see Hyman v. Booth Mem. Hosp. , 306 AD2d 438, 438 [2003] ; see Gonzalez v. Ford Motor Co. , 295 AD2d 474, 475 [2002] ). Generally speaking, the Court is divested of jurisdiction upon the death of a party (see CPLR 1015 [a]; Hyman v. Booth Mem. Hosp. , 306 AD2d at 438 ; see Gonzalez v. Ford Motor Co. , 295 AD2d at 475 ). CPLR 1021, however, offers an exception to this rule ( Hyman v. Booth Mem. Hosp. , 306 AD2d at 438 ; see Gonzalez v. Ford Motor Co. , 295 AD2d at 475 ). Specifically, where "persons interested in the decedent's estate [are] provided with sufficient notice of the defendants' ... motion[ ] to dismiss the complaint pursuant to CPLR 1021, ... the Supreme Court [then has] jurisdiction regarding the motions" ( Hyman v. Booth Mem. Hosp. , 306 AD2d at 438 ; see Gonzalez v. Ford Motor Co. , 295 AD2d at 475 ). Here, defendants failed to serve two of decedent's four children—namely, Cynthia Billington and Deborah Holcomb—with their motion for dismissal under CPLR 1021.
Plaintiff's Cross Motion
Consistent with the discussion set forth above plaintiff's cross motion is granted in its entirety (see CPLR 1015 [a] ) and the caption is hereafter amended as follows:
STATE OF NEW YORK
SUPREME COURT COUNTY OF WARREN
_________________________
YVONNE DEVINE, Individually and as Executrix of the
ESTATE OF RAE E. CLARKE,
Plaintiffs,
Index No. 2015–62055
RJI No. 56–1–2017–0240
v.
PETER SLUCK d/b/a PRECISION CONSTRUCTION,
STEVE BONHOTE d/b/a PRECISION
CONSTRUCTION and PRECISION
CONSTRUCTION PLUS, INC.,
Defendants.
_________________________
Therefore, having considered the Affirmation of Kostas D. Leris, Esq., dated May 31, 2017 together with exhibits "A" through "E", affidavits of service attached thereto, the Affidavit of Karla W. Buettner, Esq., sworn to October 13, 2017, submitted in opposition together with exhibits "1" through "4", the Affidavit in Opposition of Kimberly M. Wells, Esq., sworn to October 13, 2017 together with exhibit "1" and the Reply Affirmation of Kostas D. Leris, Esq. dated October 19, 2017 together with exhibit "A", it is hereby
ORDERED that defendants' motion to dismiss the complaint is denied, and it is further
ORDERED that plaintiff's cross motion for substitution be granted and the caption amended accordingly, and it is further
ORDERED that a Preliminary Conference Stipulation and Order shall be submitted to Chambers prior to February 20, 2018, and it is further
ORDERED that the Note of Issue and Certificate of Readiness shall be filed no later than June 2, 2018 and it is further
ORDERED that any relief not specifically addressed has been considered and is hereby denied.
The above constitutes the Decision and Order of this Court. The original of this Decision and Order has been filed by the Court together the Order to Show Cause dated June 18, 2017 and the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon counsel for defendants in accordance with CPLR 5513.