Opinion
514622/19
08-26-2020
Karim A. WEIR, Plaintiff, v. Stephen QUINONES, Defendant.
Attorney for Plaintiff, Michael T. Kusz, Esq., SHULMAN & HILL PLLC, 26 Grace Court Aly Ste 2100, Brooklyn, NY 11201 Attorney for Defendant, William N Candiloros, Esq., ACITO KLEIN & CANDILOROS, P.C., 241 Bleecker Street Suite 200, New York, NY 10014
Attorney for Plaintiff, Michael T. Kusz, Esq., SHULMAN & HILL PLLC, 26 Grace Court Aly Ste 2100, Brooklyn, NY 11201
Attorney for Defendant, William N Candiloros, Esq., ACITO KLEIN & CANDILOROS, P.C., 241 Bleecker Street Suite 200, New York, NY 10014
Francois A. Rivera, J.
By order to show cause, filed on June 4, 2020, plaintiff Karima A. Weir (hereinafter Weir or plaintiff) has moved for an order: (1) directing that the law firm of Acito Klein & Candiloros, P.C., be appointed as temporary administrator for the estate of defendant Stephen Quinones (hereinafter Quinones or defendant); (2) changing the status of the action from stayed to active pursuant to CPLR 1015 ; and (3) extending the defendant's time to interpose an answer.
No one has submitted opposition to the plaintiff's motion.
BACKGROUND
On July 3, 2019, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's Office (hereinafter KCCO). The verified complaint alleges the following salient facts, among others. On February 23, 2019, Weir was driving a 2015 Nova motor vehicle bearing New York license plate number AW8677 on Richmond Road, in Richmond County, in State of New York. On the same date and time, defendant Quinones was driving his 2016 Ford motor vehicle bearing New York license plate number HPN6619 on the same road. The two vehicles collided with each other (hereinafter the subject accident) allegedly due to Quinones' negligent operation of his vehicle. The collision caused the plaintiff to sustain serious physical injury.
On July 17, 2019, the plaintiff electronically filed an affidavit of the purported service of the commencement papers on Quinones.
On July 25, 2019, Quinones passed away.
On June 3, 2020, plaintiff filed the instant proposed order to show cause and request for judicial intervention. On June 4, 2020, Supreme Court Justice Partnow signed the order to show cause, which set July 17, 2020 as the return date, and directed that the plaintiff serve the motion papers upon the defendant's attorneys by July 6, 2020 via certified mail return receipt requested.
On June 22, 2020, the plaintiff electronically filed a document denominated as a stipulation of settlement which purportedly resolved, on consent, the instant order to show cause. The stipulation of settlement was signed by Michael Kusz, Esq. of the law firm Shulman & Hill, PLLC on behalf of the plaintiff and by William Candiloros, Esq. of the law firm of Acito Klein & Candiloros, P.C. on behalf of the defendant.
MOTION PAPERS
Plaintiff's papers included the proposed order to show cause, an affirmation of plaintiff's counsel, and three annexed exhibits labeled A through C. Exhibit A is a police accident report pertaining to the subject accident. Exhibit B is a copy of the instant summons and complaint. Exhibit C is a letter dated September 30, 2019 from the law firm of Acito Klein & Candiloros, P.C. and a death certificate. The letter was addressed to plaintiff's counsel and advised of the death of the defendant on July 25, 2019. The death certificate was for Stephen Quinones and confirmed that he died on July 25, 2019.
LAW AND APPLICATION
On July 3, 2019, plaintiff commenced the instant action. On July 17, 2019, the plaintiff electronically filed an affidavit of the purported service of the commencement papers on Quinones. On July 25, 2019, Quinones passed away.
The affidavit of service of the commencement papers was electronically filed on July 17, 2019. Tetyana Shevchukevych, plaintiff's licensed process server (hereinafter Shevchukevych), averred the following facts. On July 15, 2019 at 12:33 P.M., Shevchukevych affixed a copy of the commencement papers to the defendant's door entrance at 1220 South Railroad Avenue, Staten Island, New York. Shevchukevych further averred that she made two prior unsuccessful attempts to serve the commencement papers on July 3, 2019 at 06:19 P.M. and on July 8, 2019 at 09:53 A.M. On July 16, 2019, after affixing the papers to defendant's door, she mailed the commencement papers to the defendant at the same address.
CPLR 308 (4) permits service by affix and mail only where personal delivery or delivery to a person of suitable age and discretion cannot be made with due diligence (see Sinay v. Schwartzman , 148 AD3d 1068, 1070 [2nd Dept 2017] ). The requirement of due diligence must be strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308 [4] ( Serraro v. Staropoli , 94 AD3d 1083, 1084 [2nd Dept 2012], citing Kaszovitz v. Weiszman , 110 AD2d 117, 120 [2nd Dept1985] ).
For the purpose of satisfying the due diligence requirement of CPLR 308 (4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment ( Coley v. Gonzalez , 170 AD3d 1107 [2nd Dept 2019], citing Serraro , 94 AD3d at 1085 ). The plaintiff presented nothing to show that inquiries were made about the defendant's place of employment. Consequently, service pursuant to CPLR 308 (4) was improper and the Court did not attain personal jurisdiction over the defendant.
Assuming for the sake of argument that the plaintiff's use of CPLR 308 (4) was proper, under the circumstances presented here, the plaintiff's motion papers reveal a much more fundamental problem. CPLR 308 (4) establishes that service is not complete until ten days after the affidavit of service is filed. In the instant case, the affidavit of service was filed on July 17, 2019 and service would not have been completed until July 27, 2019. However, the defendant passed away on July 25, 2019, two days before service of the commencement papers was completed.
It is well settled that the death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a) ..., and any order rendered after the death of a party and before the substitution of a legal representative is void (see Matter of Sills v. Fleet Natl. Bank , 81 AD3d 1422, 1423 [4th Dept 2011], citing Griffin v. Manning , 36 AD3d 530, 532 [1st Dept 2007] ).
Only under special circumstances, such as where there has been active participation in the litigation by the personal representative who would have been substituted for decedent is the rule waived (id. ). It is also well established that the dead cannot be sued ( Marte v. Graber , 58 AD3d 1 [1st Dept 2008] ; HSBC Bank USA, N.A. v. Brunson , 40 Misc 3d 1219 (A) [Sup. Ct. 2013] ).
The substitution provisions of CPLR 1015 (a) and 1021 presuppose that an action was commenced against a living person—someone who has the legal capacity to be "a party"—and the action was pending at the time such party died. In Marte v. Graver (58 AD3d 1 [1st Dept 2008] ), the putative defendant was already dead at the time the summons and complaint was filed, rendering the action a nullity from the outset as to that defendant. Since the decedent was never a party to the action, the substitution provisions of CPLR 1015 and 1021 were unavailable to correct the defect, and dismissal was required (see Rivera v. Bruchim , 100 AD3d 700 [2nd Dept 2013] ). A personal representative should have been named as the defendant at the outset (Vincent C. Alexander Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR C1015:3. Substitution Upon Death of a Party).
In the instant action, the defendant died before the plaintiff completed service of the commencement papers upon him. The order to show cause ultimately seeks, among other things, an order pursuant to CPLR 1015 permitting the appointment of a law firm as a temporary administrator of the defendant's estate. However, since the defendant died before he was served with the commencement papers, this action is a nullity and cannot be remedied. The court has no jurisdiction to entertain the motion (see Rivera, 100 AD3d 700 ). Therefore, plaintiff's order to show cause was not resolved by the electronically filed stipulation. The motion is denied and the complaint is dismissed.
CONCLUSION
The order to show cause by plaintiff Karima A. Weir for an order directing that the law firm of Acito Klein & Candiloros, P.C. be appointed as temporary administrator for the estate of defendant Stephen Quinones is denied.
The order to show cause by plaintiff Karima A. Weir for an order changing the status of the action from stayed to active pursuant to CPLR 1015 is denied.
The order to show cause by plaintiff Karima A. Weir for an order extending the defendant's time to interpose an answer is denied.
The action is a nullity and is dismissed.
The foregoing constitutes the decision and order of this Court.