Opinion
# 2012-013-003 Claim No. 120604 Motion No. M-80832
01-24-2012
Passalacqua v. THE STATE OF NEW YORK
Synopsis
Claimant, a convicted felon, was always ineligible to receive letters of administration and, thus, lacked capacity to bring the claim on behalf of his decedent's estate. Dismissal, as opposed to suspension of the claim pending appointment of a new administrator, was warranted. Claimant was the sole distributee of the estate and, thus, no other person's rights were implicated by dismissing claim that was now time-barred. Case information
UID: 2012-013-003 Claimant(s): JOSHUA PASSALACQUA as Administrator of the Estate of BRITTANY PASSALACQUA Claimant short name: Passalacqua Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 120604 Motion number(s): M-80832 Cross-motion number(s): Judge: PHILIP J. PATTI Kenny & Kenny, PLLC Claimant's attorney: BY: MICHAEL P. KENNY, ESQ. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: January 24, 2012 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On January 18, 2012, the following papers were read on Defendant's motion to dismiss Claim No. 120604:
Notice of Motion (M-80832) and Supporting Affirmation with Exhibit Annexed
Defendant's Supplemental Affirmation with Exhibit Annexed
Claimant's Opposing Affirmation with Exhibits Annexed
Defendant's Reply Affirmation with Exhibits Annexed
Filed Papers: Claim
Claimant Joshua Passalacqua (Claimant) filed Claim No. 120604 as Administrator of the Estate of Brittany Passalacqua (Claimant's decedent), seeking damages for the alleged wrongful death of Claimant's decedent due to Defendant's negligence. Defendant now moves to dismiss the claim on the basis that Claimant was ineligible to receive Letters of Administration due to his status as a convicted felon and, thus, he lacked capacity to bring the claim. Claimant responds that he was issued Letters of Limited Administration and, thus, that is conclusive evidence of his authority to file a claim. Claimant further responds that Defendant failed to meet its burden, and, also that the claim should be suspended with a new administrator appointed instead of dismissed. For the reasons set forth below, Defendant's motion is granted and the claim is dismissed.
The claim, which was filed with the Court of Claims on November 18, 2011, alleges that, on November 20, 2009, Claimant's decedent was attacked and killed by John E. Brown, a parolee under Defendant's supervision. Claimant alleges specifically that Defendant was "negligent, wanton, reckless and careless in failing to provide reasonable and proper supervision" of Brown.
On November 17, 2011, Claimant filed his petition for Letters of Limited Administration with Ontario County Surrogate's Court for the purpose of filing the instant claim. Claimant is a convicted felon who, on October 22, 2003, was sentenced as a violent felony offender to a maximum four-year term of incarceration with five years of post-release supervision for the felonies of Burglary in the Second Degree (Penal Law § 140.25 [2]), Grand Larceny in the Fourth Degree (Penal Law § 155.30 [1]), and Robbery in the Third Degree (Penal Law § 160.05), as well as the misdemeanor of Criminal Mischief in the Fourth Degree (Penal Law § 145.00 [1]). According to the New York State Department of Corrections and Community Supervision (DOCCS), Claimant was still an active parolee as of January 10, 2012 (Exhibit A to Defendant's Reply Affirmation).
Claimant's petition for Letters of Limited Administration was granted on November 18, 2011 by the Honorable Frederick G. Reed of the Ontario County Surrogate's Court (Claimant's Opposing Affirmation, at Exhibit A). This claim was filed with the Court of Claims that same day. Four days later, on November 22, 2011, Judge Reed issued an Order Revoking Limited Letters of Administration, on the grounds that "the Court [] determined that [Claimant] is a felon and was and is ineligible to receive letters pursuant to SCPA § 707 (d) [sic]" (Defendant's Supplemental Affirmation, at Exhibit A). Pursuant to the Order, the Limited Letters of Administration were revoked "and all authority granted thereby is terminated immediately."
Defendant now moves to dismiss the claim on the ground that Claimant, as a felon, was ineligible to receive letters of administration and, thus, the Limited Letters of Administration issued by the Ontario County Surrogate's Court were void ab initio. Defendant contends that, because Claimant lacked capacity to bring the claim, it should be treated as a nullity and the claim dismissed. Claimant makes several contentions in response. One, Claimant avers that the Limited Letters of Administration that were issued to him on November 18, 2011 are conclusive evidence of his authority to file the claim. Two, Claimant avers that Defendant failed to meet its burden by presenting evidence to conclusively dispose of the claim. Finally, Claimant urges that, because the action would be time-barred if dismissed, the claim should be suspended pending a petition to the Surrogate's Court to appoint an administrator de bonis non. Defendant replies that Claimant's response fails to address the factual scenario currently before the Court, in that he failed to address the fact that Claimant would have no doubt been aware of his own status as a felon at the time he petitioned for the Limited Letters of Administration.
Pursuant to SCPA 707 (1) (d), a felon is ineligible to be issued letters as a fiduciary, although this disability can be removed if the felon is later pardoned, receives a certificate of good conduct or a certificate of relief of disabilities from DOCCS (see Matter of Bashwinger, 92 Misc 2d 716). Despite his status as a convicted felon who was still under parole supervision on November 18, 2011, Claimant indicated on his petition to the Surrogate's Court that, among other things, he was "not ineligible to receive letters" (Exhibit C to Defendant's Reply Affirmation, at p. 5). While there does not appear to be any case law specific to the situation underlying the instant claim, there is a recent decision from the First Department, Matter of Ajala (84 AD3d 466), which may prove instructive. In Ajala, appellants took appeal from a decision of the Surrogate's Court, New York County, which vacated an earlier decree appointing them as co-guardians of the property of subject infants and dismissed the petition of one appellant, Mabel Ajala, which sought to release certain funds to her on behalf of the infants. Ajala was a non-resident alien and, thus, ineligible to serve as sole co-fiduciary with Sebastian Ibezim, who was a non-resident of the State of New York. The First Department affirmed the decision of the Surrogate's Court, holding first that there was no evidence that Ajala fell under an exception to the SCPA 707 (1) (c) prohibition on non-domiciled aliens serving as fiduciaries, or that she ever applied for ancillary letters of guardianship as provided for by SCPA 1716 (4). As such, "the court properly dismissed appellant Mabel Ajala's petition to release the subject funds because Mabel Ajala lacked standing" (Ajala, 84 AD3d at 467).
I believe the instant situation to be similar. Despite his professed eligibility on the petition to the Surrogate's Court, Claimant was always ineligible to receive letters of administration, and although he was issued the Limited Letters of Administration, he always lacked capacity to bring the instant claim. As such, Defendant's motion should be granted and the claim dismissed.
Claimant contends, however, that the fact that he was issued the Limited Letters of Administration was conclusive evidence of his authority, pursuant to SCPA § 703 (1), and that the later revocation of the letters "does not affect the validity of any act within the powers of the fiduciary done by him before . . . the revocation of his letters" (SCPA § 720). Claimant cites one decision, Matter of Grillo (26 AD3d 376), in support of his contention. That decision refers to SCPA § 720 and notes that any transactions made in "good faith" prior to the revocation of letters will remain enforceable and valid, although the decision offers no facts with respect to the basis for the revocation of the former executrix's letters, or her eligibility to receive letters (see id.). In light of this absence of facts, I do not find Grillo to be persuasive authority on the instant matter, where it is undisputed that Claimant was always ineligible to receive letters of administration pursuant to SCPA 707 (1) (d). Ajala is once again instructive, as the First Department found that, in light of Ajala's lack of standing prior to the revocation of her appointment as co-guardian, "the petition did not constitute a prior act in Ajala's capacity as fiduciary within the meaning of SCPA 720" (Ajala, 84 AD3d at 467). Similarly, here, Claimant never acted in his capacity as a fiduciary, because he was never eligible to act as a fiduciary.
Claimant urges, in the alternative, that the Court suspend, not dismiss, the claim, pending appointment of a new administrator for Claimant's decedent. Claimant has identified another person, named Brandon Passalacqua, who will reach age of majority on February 18, 2012 and may petition the Surrogate's Court for letters of administration. In support of this, Claimant cites Stolz v New York Cent. R.R.Co. (7 NY2d 269), in which the Court of Appeals held that it was error for the trial court to dismiss actions brought by an invalidly appointed administratrix to an estate, thereby disposing of the rights of the actual beneficiaries to the estate, who were not before the court, and where the time to file an action had already passed. Additionally, the Court found that the Trial Judge exercised improperly discretion that belonged to the Surrogate's Court by finding the administratrix to be invalid and dismissing the actions, where the Surrogate, with full knowledge of the facts, could have authorized the administratrix to continue the actions instead of disposing of the rights of the remaining beneficiaries, as the Trial Judge did (see id.).
Here, the two-year statute of limitations for wrongful death in Court of Claims Act § 10 (2) has passed, and so a dismissal of this claim would be its end. The Surrogate's Court has already determined that Claimant "was and is ineligible to receive letters" under the SCPA (Defendant's Supplemental Affirmation, at Exhibit A), and his Limited Letters of Administration were duly revoked. Thus, unlike in Stolz, Claimant has already been stripped of his authority by the Surrogate's Court, so there is no possibility that he would be appointed administrator for purposes of maintaining the claim. The question, then, is whether the claim should be suspended and returned to Surrogate's Court for appointment of a new administrator for the benefit of other distributees. I answer this question in the negative, as there are no other distributees. Claimant, in his petition to the Surrogate's Court, identified himself as the sole distributee and sole person entitled to inherit Claimant's decedent's estate pursuant to EPTL 4-1.1 (Exhibit C to Defendant's Reply Brief, at pp. 2-3). Although Claimant now states that there is a Brandon Passalacqua, her brother, who will soon reach age of majority and may petition for letters of administration, this is of no moment. Under EPTL 4-1.1 (4), Claimant will inherit the whole of the estate as the sole living parent of Brittany Passalacqua; Brandon Passalacqua, her brother, is not a distributee and, thus, not an interested party. Thus, the instant situation is distinguishable from Stolz as Claimant has already been determined to be an ineligible administrator by the Surrogate's Court, and there are no other distributees whose rights are implicated by dismissal of the claim. Based on the record here, it would be fruitless to return this matter to the Surrogate's Court.
Accordingly, Defendant's motion (M-80832) is hereby GRANTED and Claim No. 120604 is DISMISSED.
January 24, 2012
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims