Opinion
# 2012-039-335 Claim No. 116716 Motion No. M-81694
09-07-2012
JEZOAR REECE and ZAHYR REECE, Infants, by their m/n/g MARSHA THOMPSON, on Behalf of ARTHUR WILLIAM REECE, JR., Deceased v. STATE OF NEW YORK
Synopsis
Claim is dismissed on the Court's motion (Order to Show Cause). Claimants submitted no response to the Order to Show Cause and failed to offer proof establishing that the individual who commenced this action on behalf of decedent had been appointed as the personal representative or administratrix of decedent's estate. This claim is therefore dismissed on the ground that claimants lacked standing to commence the action. Case information
UID: 2012-039-335 Claimant(s): Claimant short name: REECE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116716 Motion number(s): M-81694 Cross-motion number(s): Judge: James H. Ferreira Krentsel & Guzman, LLP Claimant's attorney: By: Alex Rybakov, Esq. Ahmuty, Demers & McManus Defendant's attorney: By: Robert J. Hindman, Esq. Third-party defendant's attorney: Signature date: September 7, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim (Claim No. 116716) was filed with the Chief Clerk of the Court of Claims on April 16, 2009. The claim is identical to Claim No. 116608, which was filed with the Chief Clerk of the Court of Claims on March 26, 2009. Both claims seek damages for the wrongful death of Arthur William Reece, Jr., and the caption of both claims identifies the claimants as: "JEZOAR REECE and ZAHYR REECE, Infants, by their m/n/g MARSHA THOMPSON, on Behalf of ARTHUR WILLIAM REECE, JR., Deceased".
After these claims were filed, Ernest Reece was qualified as the administrator of decedent's estate and was granted limited letters of administration. He was also granted a conservatorship for and on behalf of the infants. Thereafter, in June 2011, claimants moved, in Claim No. 116608, to amend the caption to identify claimant as "ERNEST REESE, as Administrator of the Estate of ARTHUR WILLIAM REECE, Deceased, on behalf of Infants and as Conservator of JEZOAR REECE and ZAHYR REECE". Defendant opposed the motion. In a Decision and Order dated September 30, 2011, the Court (Ferreira, J.) denied claimants' motion to amend the caption (Reece v State of New York [Ct Cl, Ferreira, J, Sept. 30, 2011]). The Court found that Marsha Thompson, the mother of the infants and former wife of the decedent, lacked standing to commence the action because she was not decedent's personal representative, having not been appointed the administratrix or executrix of decedent's estate. The Court, sua sponte, dismissed the claim based upon claimants' lack of standing to commence the action. In its Decision and Order, the Court referred to Claim No. 116716 as a "superceding claim" but did not dismiss it (Reece v State of New York [Ct Cl, Ferreira, J, Sept. 30, 2011]).
By Order to Show Cause returnable July 18, 2012, the Court ordered claimants to show cause why Claim No. 116716 should not be dismissed based upon claimants' lack of standing to bring the action. The Court ordered claimants to submit a written statement relating to their standing, making reference to and including copies of any relevant documentary evidence. The Order to Show Cause was served upon claimants on June 13, 2012. It was mailed to claimants' attorney of record, Krentsel & Guzman, LLP, at the firm's last known address at 17 Battery Place, Suite 604, New York, NY 10004. To date, claimants have not responded to the Order to Show Cause.
The Court notes that defendant was not served with the Order to Show Cause. In April 2011, the law firm of Ahmuty, Demers & McManus was substituted as counsel for defendant in place of the Attorney General. However, the Order to Show Cause directed that service of a copy of the order upon defendant "by regular mail or messenger delivery to the office of the Attorney General shall be deemed good and sufficient notice thereof," and, accordingly, the order was served upon the Attorney General rather than Ahmuty, Demers & McManus. However, the Court discerns no prejudice arising from defendant's lack of notice of the Order to Show Cause.
The EPTL provides that a "duly appointed" personal representative has the authority to maintain an action to recover damages for a wrongful act or neglect which allegedly caused the decedent's death (EPTL 5-4.1 [1]). "A personal representative is a person who has received letters to administer the estate of a decedent" (EPTL 1-2.13). Additionally, Court of Claims Act § 10 (2) "contemplate[s] the formal appointment of an executor or administrator before the commencement of a claim against the State to recover damages" for wrongful death (Thomas v State of New York, 57 AD3d 969, 970 [2008]; see Court of Claims Act § 10 [2]). It is well-settled that a person who has not been appointed as a personal representative of a decedent's estate lacks standing to commence a wrongful death action on the decedent's behalf (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Rumola v Maimonides Med. Ctr., 37 AD3d 696, 697 [2007]; Palladino v Metropolitan Life Ins. Co., 188 AD2d 708, 709 [1992]). A wrongful death claim that has been commenced by a claimant absent appointment as a personal representative must be dismissed (see Thomas v State of New York, 57 AD3d at 970).
The Court concludes that Claim No. 116716 must be dismissed. In its Decision and Order dismissing Claim No. 116608, this Court found that Ms. Thompson had not been appointed as the personal representative or administratrix of decedent's estate (see Reece v State of New York [Ct Cl, Ferreira, J, Sept. 30, 2011]). Claimants have offered no proof to the contrary. As such, the Court finds that claimants lacked standing to commence this action, and claim No. 116716 is hereby dismissed in its entirety.
September 7, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Order to Show Cause, filed June 13, 2012.