Opinion
6058 6059 Index 805354/15
03-22-2018
Arielle Weinberger PAPADAM, et al., Plaintiffs–Appellants, v. Ivan K. ROTHMAN, M.D., et al., Defendants–Respondents.
Joseph C. Andruzzi, Bethpage, for appellants. Reed Smith LLP, New York (Andrew B. Messite of counsel), for Ivan K. Rothman, M.D., respondent. Keller, O'Reilly & Watson, P.C., Woodbury (Angela A. Cutone of counsel), for South Shore Hematology–Oncology Associates, P.C. and Leonard Kessler, M.D., respondents.
Joseph C. Andruzzi, Bethpage, for appellants.
Reed Smith LLP, New York (Andrew B. Messite of counsel), for Ivan K. Rothman, M.D., respondent.
Keller, O'Reilly & Watson, P.C., Woodbury (Angela A. Cutone of counsel), for South Shore Hematology–Oncology Associates, P.C. and Leonard Kessler, M.D., respondents.
Tom, J.P., Webber, Oing, Moulton, JJ.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered August 30, 2016, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about July 11, 2016, which granted defendants' motions to dismiss the complaint, and denied plaintiffs' cross motion for summary judgment on the first cause of action, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court providently exercised its discretion in deferring resolution of the first cause of action, which sought to remove defendant Dr. Ivan Rothman as the executor of the estate of his deceased wife, Deborah Rothman, and substitute plaintiff Papadam, decedent's daughter, as the executor, to the then pending petition in the Surrogate's Court of Nassau County, which sought identical relief. The Surrogate's Court, which has concurrent jurisdiction in matters involving a decedent's estate (see N.Y. Const, art VI, §§ 7, 12 [d]; Matter of Kaminester v. Foldes, 51 A.D.3d 528, 529, 859 N.Y.S.2d 412 [1st Dept. 2008] ), administered the settlement of decedent's estate and retained jurisdiction over the proceedings (see Reilly v. Wygant, 11 A.D.2d 647, 201 N.Y.S.2d 225 [1st Dept. 1960] ; Cipo v. Van Blerkom, 28 A.D.3d 602, 813 N.Y.S.2d 532 [2d Dept. 2006] ).
Plaintiffs' causes of action for medical malpractice, wrongful death, and lack of informed consent, arising out of treatment rendered to their late mother, were properly dismissed for lack of standing, as plaintiffs are not authorized to act on behalf of the estate (see EPTL 5–4.1 ; Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 251, 434 N.Y.S.2d 130, 414 N.E.2d 632 [1980] ).
We have considered plaintiffs' remaining contentions and find them unavailing.