Opinion
Index No. 516456/2016
06-25-2020
MICHAEL NORWOOD, Plaintiff, v. CITY OF NEW YORK, VICTOR THOMPSON & HAPPY LIFE NAIL SALON INC., Defendants.
Unpublished Opinion
DECISION & ORDER
Hon. Rosemarie Montalbano Judge
Recitation, as required by CPLR §2219 [a], of the papers considered in the review of the plaintiff's order to show cause:
Papers Numbered
Notice of Motion and Affidavit. ................................ .
Order to Show Cause and Affidavits Annexed ...............1
Answering Affidavits ............. . .......... . ................... .. 2
Replying Affidavits ..............................................
Sur Reply Affidavit. ...... . .......................................
After oral argument and a review of the submissions herein, the Court finds as follows:
This is a negligence action arising from a trip and fall accident. The accident allegedly occurred on the sidewalk at or near the curb in front of the premises known as 5018 Church Avenue in Brooklyn. Defendant Victor Thompson was the owner of the premises.
This action was commenced on September 19, 2016. On August 20, 2019, after some pretrial discovery, compliance conferences, and defendant's failure to attend depositions it was confirmed by death certificate that defendant Thompson had died on June 8, 2017.
Plaintiff now moves for this Court to appoint counsel for defendant, Fixler & Lagattuta, LLP a temporary administrator for purposes of completing this lawsuit. Defendant's oppose.
Pursuant to CPLR 1015, "if a party dies and the claim for or against [them] is not thereby extinguished the court shall order substitution of the proper parties." It has been held that were a plaintiff seeks to obtain his recovery only from the defendant's insurance policy, the action really is between [them] and the insurer (Batan v Schmerler, 155 Mise 2d 46, 48 [Sup Ct 1992]; citing Gelbman v Gelbman, 23 N.Y.2d 434; but see, Adelman v Friedman, 80 Mise 2d 946). Plaintiff s states in his papers that he would enter into a stipulation stating that he would limit the recovery in relation to the estate of defendant, Victor Thompson, up to the insurance coverage available under his insurance policy.
Accordingly, the motion is GRANTED, to the extend that defendant's counsel Fixler & Lagattuta, LLP, shall be appointed as guardian to act as temporary administrator of the estate of defendant Victor Thompson, for the purpose of and with their powers limited to defending this action, upon the condition that the plaintiffs stipulate that any recovery against the estate will be limited to the available insurance coverage.
The foregoing shall constitute the decision and order of this Court.