Opinion
TS-300005/19
04-08-2021
Robert SQUILLANTE, Plaintiff, v. Mickey BRYANT and Nancy Damore, Defendant.
Counsel for plaintiff's administrator: Eric Green and Associates. Counsel for defendant Mickey Bryant: Mead, Hecht, Conklin, & Gallagher, LLP. Counsel for defendant Nancy Damore: Law Office of Dennis Bartling.
Counsel for plaintiff's administrator: Eric Green and Associates.
Counsel for defendant Mickey Bryant: Mead, Hecht, Conklin, & Gallagher, LLP.
Counsel for defendant Nancy Damore: Law Office of Dennis Bartling.
Fidel E. Gomez, J.
In this action for personal injuries arising from alleged negligence in the operation of two motor vehicles, DESTINY SQUILLANTE, AS THE ADMINISTRATOR OF THE ESTATE OF ROBERT SQUILLANTE (DS), moves seeking an order, inter alia , pursuant to CPLR § 1015(a) substituting DS for plaintiff ROBERT SQUILLANTE (RS), who is deceased. Defendant MICKEY BRYANT (Bryant) opposes the instant motion averring, inter alia , that the delay in seeking substitution is inordinate and prejudicial. Defendant NANCY DAMORE (Damore), submitted no opposition to the motion, nor did she appear for oral argument.
For the reasons that follow hereinafter, DS' motion is granted.
Pursuant to the complaint, this action is for alleged personal injuries arising from the negligent operation of two motor vehicles. Specifically, it is alleged that on April 19, 2010, RS was involved in an accident when, while a passenger in a vehicle owned and operated by Damore, said vehicle came into contact with a vehicle owned and operated by Bryant. It is alleged that defendants were negligent in the operation of their respective vehicles, said negligence causing the accident and the injuries to RS arising therefrom.
On January 29, 2019, this action, originally initiated in Supreme Court, was transferred to this Court pursuant to CPLR § 325(d). On March 5, 2019, when the parties appeared for a pretrial conference in Part 21, the case was stricken off the calendar pursuant to 22 NYCRR 208.14(b)(2) .
According to 22 NYCRR 208.14(b)(2) "[a]t any scheduled call of a calendar or at a pretrial conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge presiding may note the default on the record and enter an order as follows ... If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims."
In support of the instant motion, DS submits a document from Surrogate's Court, Bronx County, titled Certificate of Appointment of Administrator, which indicates that RS died on January 5, 2019. The document also indicates that on August 12, 2019 DS was granted limited letters of administration over RS' estate.
Based on the foregoing, the instant motion is granted. Significantly, in demonstrating that RS died and that DS received letters of administration over his estate, DS has met the requisite burden for the relief sought under CPLR § 1015(a).
CPLR § 1015 (a) states that "[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." Generally, the only inquiry for purposes of a motion pursuant to CPLR § 1015(a) is whether the party sought to be substituted for a deceased party is duly appointed to handle the decedent's estate ( TAG 380, LLC v Estate of Ronson , 69 AD3d 471, 474 [1st Dept 2010] ["In this case, counsel for the estate provided sufficient documentary evidence to support the court's finding that Freeman and Barclays were the duly appointed executors of Ronson's estate under the laws of Monaco and thus are the proper parties for substitution."]). However, prejudice, if demonstrated, can be grounds for denial of a motion for substitution ( Peters v City of New York Health and Hosps. Corp. , 48 AD3d 329 [1st Dept 2008] ; Schwartz ex rel. Estate of Schwartz v Montefiore Hosp. and Med. Ctr. , 305 AD2d 174, 176 [1st Dept 2003] ; Rocha Toussier y Asociados, S.C. v Rivero , 184 AD2d 398, 398 [1st Dept 1992] ). Prejudice is the impairment of defendant's ability to defend an action on the merits ( Slate v Schiavone Construction Company , 10 AD3d 1, 4 [1st Dept 2004] ; Busler v Corbett , 259 AD2d 13, 16 [4th Dept 1999] ). It does not result from the loss of a procedural or technical advantage (Slate at 4; Busler at 16).
Here, DS has demonstrated that RS died and that by the grant of limited letters of administration, she has been granted the authority to administer RS' estate. Thus, the instant motion must be granted. Notably, Bryant urges the Court to deny the instant motion because "[i]t will be extremely difficult to produce witnesses and medical records given the amount of time that has passed since the accident." Bryant's conclusory statement regarding the anticipated difficulty in procuring evidence is unavailing. Indeed, Bryant fails to assert what documents and which witnesses will be difficult to locate. Fatally, Bryant also fails to assert that any attempts to locate the foregoing documents and witnesses proved fruitless. While it is true that this accident occurred approximately 11 years ago, this action was initiated in 2012, only two years after the accident. Presumably, the parties had an opportunity to conduct discovery for almost seven years prior to RS' death, such that it is hard to fathom how the intervening three years since RS' death makes any discernible difference. Bryant's opposition to the motion, vague and conclusory, fails to shed any light on this issue. Accordingly, the instant motion is granted.
DS' motion to restore this action to the calendar is also granted. Significantly, the Court's directive on March 5, 2019, striking this case from the Court's calendar was a nullity. Accordingly, this case should have never been stricken and should have remained on the trial calendar.
To be sure, current law states that almost all actions survive a party's death. Indeed, whether an action abates upon the death of a party is governed by the Estates, Powers and Trusts Law (EPTL). EPTL § 11-3.1 governs any action not related to personal injury and states that [a]ny action, other than an action for injury to person or property, may be maintained by and against a personal representative in all cases and in such manner as such action might have been maintained by or against his decedent.
EPTL § 11-3.2 governs actions involving injury to person or property. With regard to actions against a defendant who dies simultaneously with or after an injury causing event, EPT § 11-3.2(a)(1) and (2) state that [n]o cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury. This section extends to a cause of action for wrongfully causing death and an action therefor may be brought or continued against the personal representative of the person liable therefor.
(2) Where death or an injury to person or property, resulting from a wrongful act, neglect or default, occurs simultaneously with or after the death of a person who would have been liable therefor if his death had not occurred simultaneously with such death or injury or between the wrongful act, neglect or default and the resulting death or injury, an action to recover damages for such death or injury may be maintained against the personal representative of such person.
With regard to an action by a person (a putative plaintiff) who dies simultaneously or after an injury causing event, EPTL § 11-3.2(b) reads:
(b) Action by personal representative for injury to person or property.
No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury where the death occurs on or before August thirty-first, nineteen hundred eighty-two. On the trial of any such action accruing before September first, nineteen hundred seventy-five, which is joined with an action for causing death, the contributory negligence of the decedent is a defense, to be pleaded and proved by the defendant. No cause of action for damages caused by an injury to a third person is lost because of the death of the third person.
Based on the foregoing, it is clear that upon the death of a party, the action abates as to said party and must be dismissed unless it is revived by substitution of the decedent's personal representative (Matter of Einstoss , 26 NY2d 181, 190 [1970] ). This is because upon the death of a party the court is divested of jurisdiction over the party and does not obtain the same over the decedent's personal representative, if there is one, until a motion for substitution is made ( id. at 181, 188-190 ; Sivagnoli v Consolidated Edison Employees Mutual Aid Society , 112 AD2d 819, 820 [1st Dept 1985] ; Bossert v Ford Motor Company , 140 AD2d 480, 481 [2d Dept 1988] ).
Significantly, the death of a party triggers an automatic stay of all proceedings until a motion for substitution is made ( Bova v Vinciguerra , 139 AD2d 797, 798-799 [3d Dept 1988] ; Grillo v Tese , 113 AD2d 871, 873 [2d Dept 1985] ). As long as the stay is in place, the court cannot issue any orders on the case, nor hear appeals ( Windsom v Windsom , 111 AD2d 13, 14 [1st Dept 1985] ; Paul v Ascher , 106 AD2d 619, 620-621 [2d Dept 1984] ; Dorney v Reddy , 45 AD2d 754, 755 [2d Dept 1974] ). Any orders issued by the court subsequent to the death of a party and prior to substitution are nullities (Bossert at 481; Dorney at 755). In fact, the death of a party also terminates the agency relationship between the deceased and his or her attorney, thus divesting the attorney from any authority to act upon the decedent's behalf (Bossert at 481; Sivagnoli at 820; Macomber v Cipollina , 226 AD2d 435, 436-437 [2d Dept 1996] ; Blank v Schafrann , 206 AD2d 771, 773 [3d Dept 1994] ; Hemphill v Rock , 87 AD2d 836, 836 [2d Dept 1982] ).
While the court is divested of jurisdiction upon the death of a party, just as it has the limited jurisdiction to order substitution pursuant to CPLR § 1015(a), it also has limited jurisdiction to entertain a motion for dismissal pursuant to CPLR § 1021 on grounds that there has been a failure to substitute ( CPLR § 1021 ; Washington v Min Chung Hwan , 20 AD3d 303, 305 [1st Dept 2005] ; Walfred Corporation v Alb-Inn Inc. , 178 AD2d 811, 812 [3d Dept 1991] ).
CPLR § 1021 states that "[a] motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant. If the event requiring substitution occurs before final judgment and 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. If the event requiring substitution occurs after final judgment, substitution may be made in either the court from or to which an appeal could be or is taken, or the court of original instance, and if substitution is not made within four months after the event requiring substitution, the court to which the appeal is or could be taken may dismiss the appeal, impose conditions or prevent it from being taken. Whether or not it occurs before or after final judgment, if 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.
Here, RS died on January 5, 2019. His death triggered an automatic stay of all proceedings in this action until the instant motion for substitution was made (Bova at 798-799; Grillo at 873). Moreover, beyond a motion pursuant to CPLR § 1015 or § 1021, the foregoing stay divested the Court of any authority to issue orders on the case (Windsom at 14; Paul at 620-621; Dorney at 755). Thus, any orders issued by this Ccourt subsequent to RS' death and prior to substitution were nullities (Bossert at 481; Dorney at 755). Accordingly to extent that the Court issued an order striking this action from the calendar on March 4, 2019, it did so without jurisdiction insofar as there had not yet been an order substituting a personal representative in RS' place. It is hereby
ORDERED that DS be hereby substituted in place of RS in this action. It is further
ORDERED that all stays imposed by RS' death are hereby lifted. It is further
ORDERED that the all pleadings are deemed amended to reflect the substitution and that the caption herein be amended to read as follows:
x
DESTINY SQUILLANTE, AS THE ADMINISTRATRIX OF THE ESTATE OF ROBERT SQUILLANTE, DECEASED Plaintiff(s),
against
MICKEY BRYANT AND NANCY DAMORE, Defendant(s).
x
It is further
ORDERED that all pleadings in this action are hereby deemed amended to reflect the amended caption. The Clerk of the Court shall mark his records to reflect the amendment after collecting any applicable fees from plaintiff, if any. It is further
ORDERED that plaintiff provide all defendants with copies of the letters of administration naming DS as executor within thirty (30) days hereof. It is further
ORDERED that the Clerk restore this case to the Court's Part 21 calendar and schedule a conference as soon as the Court's calendar allows. It is further
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all defendants within thirty (30) days hereof.