Centeno v Krieff 2024 NY Slip Op 30294(U) January 23, 2024 Supreme Court, New York County Docket Number: Index No. 805351/2019 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805351/2019 TERESA CENTENO, 01/16/2024, Plaintiff, MOTION DATE 01/16/2024
-v- MOTION SEQ. NO. 009, 010
DONALD S. KRIEFF, D.O., NEUROLOGICAL SURGERY, P.C., ST. JOSEPH'S HOSPITAL, KENNETH WENKE, and DECISION AND ORDER ON BOSTON SCIENTIFIC CORPORATION MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 009) 116, 117, 118, 119, 120, 121, 122, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 156, 157, 169, 170, 171 VACATE STAY/SUBSTITUTE PARTY/AMEND were read on this motion to/for CAPTION/X-MOTIONS TO DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 010) 123, 124, 125, 126, 127, 128, 129, 153, 155, 158, 164, 165, 166, 167, 168, 172 were read on this motion to/for DISMISS .
In this medical malpractice and negligence action, Evelyn Celeste Centeno (Centeno),
as the executor of the estate of the deceased plaintiff, Teresa Centeno, moves pursuant to
CPLR 1015 and 1021 to substitute herself as a party plaintiff in place and instead of the
decedent, to vacate the automatic stay of proceedings imposed by operation of law upon the
decedent’s death, and pursuant to CPLR 305(c) for leave to amend the caption accordingly
(MOT SEQ 009). The defendants oppose the motion. The defendants Donald S. Krieff, D.O.,
and Neurological Surgery, P.C. (together the Krieff defendants), cross-move, and the defendant
St. Joseph’s Hospital separately cross-moves, pursuant to CPLR 1021 to dismiss the amended
complaint insofar as asserted against each of them (MOT SEQ 009). Centeno opposes the
cross motions. The defendants Kenneth Wenke and Boston Scientific Corporation (together the
BSC defendants) separately move pursuant the CPLR 1021 to dismiss the complaint insofar as
805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 1 of 5 Motion No. 009 010
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asserted against them (MOT SEQ 010). Centeno opposes the separate motion. Centeno’s
motion is granted, the cross motions are denied, and the BSC defendants’ separate motion is
denied.
The decedent commenced this action on October 25, 2019 by filing a summons with
notice (see CPLR 304). She served and filed the complaint on June 8, 2020, and served and
filed an amended complaint on January 8, 2021. On May 19, 2022, the decedent died, and all
proceedings in this action thus were automatically stayed by operation of law on that date,
pending substitution of a representative of her estate (see Perez v City of New York, 95 AD3d
675, 677 [1st Dept 2012]). This court memorialized the stay in an order dated July 28, 2022.
On September 1, 2023, the Surrogate’s Court, New York County, issued letters testamentary to
Centeno, thus appointing her as the executor of the decedent’s estate. She now moves to
substitute herself in this action for the decedent as a party plaintiff, to vacate the automatic stay,
and for leave to amend the caption accordingly. Centeno made the instant motion on October
19, 2023 (see CPLR 2211).
It is well settled that, where an administrator or executor is appointed as representative
of the estate of a decedent who was a party to a pending action, substitution and amendment of
the caption is appropriate (see Tag 380, LLC v Estate of Howard P. Ronson, 69 AD3d 471, 473-
474 [1st Dept 2010]). Centeno has submitted sufficient proof of her due appointment as
executor of the decedent’s estate.
Contrary to the defendants’ contentions, Centeno did not wait an unreasonable time to
seek appointment as executor or move for leave to substitute herself as the plaintiff in this
action. Rather, she petitioned the Surrogate’s Court only several months after the decedent’s
death, and waited only six weeks from the time that she was appointed executor to make the
instant motion. The issue of what constitutes a “reasonable time” within the meaning of CPLR
1021 depends on the circumstances of the case (see generally Randall v Two Bridges Assoc.
Ltd. Partnership, 139 AD3d 435 [1st Dept 2016]). Here, the defendants waited less than 18 805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 2 of 5 Motion No. 009 010
2 of 5 [* 2] INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
months after the decedent’s death to seek dismissal, and then only in response to the
executor’s motion to lift the stay and substitute herself as the plaintiff in this action. The court
concludes that those defendants did not wait for a sufficient period of time before moving to
dismiss the complaint pursuant to CPLR 1021, particularly because the decedent’s former
counsel and Centeno were working diligently since the decedent’s death to secure Centeno’s
appointment as executor of the decedent’s estate (see Dugger v Conrad, 189 AD3d 478 [1st
Dept 2020] [where defendant waited only 16 months before moving to dismiss, and former
counsel for deceased plaintiff was attempting to have the Public Administrator substituted as
plaintiff, dismissal was premature]; Tokar v Weissberg, 163 AD3d 1031, 1032-1033 [2d Dept
2018] [lapse of 2½ years between decedent's death and defendant's submission of motion to
dismiss under CPLR 1021 was insufficient to support defendant's contention that substitution
had not been made within a reasonable time, particularly where the case revolved around
medical records already in defendant's possession]; Wan Fund Leung v Yan Q. Sun, 2021 NY
Slip Op 32625[U], *3-4, 2021 NY Misc LEXIS 6320, *4-5 [Sup Ct, N.Y. County, Dec. 8, 2021]
[Kelley, J.] [where defendants waited only 18 months after decedent’s death, and a Surrogate’s
Court petition that had been filed by decedent’s heirs was pending, defendants did not wait a
sufficient amount of time before motion]). Hence, the court must grant Centeno’s motion, deny
the Krieff defendants’ and St. Joseph Hospital’s cross motions, and deny the BSC defendants’
separate motion.
In light of the foregoing, it is,
ORDERED that the motion of Evelyn Celeste Centeno (MOT SEQ 009) is granted, the
automatic stay of proceedings imposed by operation of law upon the death of the plaintiff
Teresa Centeno on May 19, 2022, as memorialized in this court’s order dated July 28, 2022, is
vacated and dissolved, and Evelyn Celeste Centeno, as executor of the estate of Teresa
Centeno, is substituted as a party plaintiff in place and instead of Teresa Centeno; and it is
further, 805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 3 of 5 Motion No. 009 010
3 of 5 [* 3] INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
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Centeno v Krieff 2024 NY Slip Op 30294(U) January 23, 2024 Supreme Court, New York County Docket Number: Index No. 805351/2019 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805351/2019 TERESA CENTENO, 01/16/2024, Plaintiff, MOTION DATE 01/16/2024
-v- MOTION SEQ. NO. 009, 010
DONALD S. KRIEFF, D.O., NEUROLOGICAL SURGERY, P.C., ST. JOSEPH'S HOSPITAL, KENNETH WENKE, and DECISION AND ORDER ON BOSTON SCIENTIFIC CORPORATION MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 009) 116, 117, 118, 119, 120, 121, 122, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 156, 157, 169, 170, 171 VACATE STAY/SUBSTITUTE PARTY/AMEND were read on this motion to/for CAPTION/X-MOTIONS TO DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 010) 123, 124, 125, 126, 127, 128, 129, 153, 155, 158, 164, 165, 166, 167, 168, 172 were read on this motion to/for DISMISS .
In this medical malpractice and negligence action, Evelyn Celeste Centeno (Centeno),
as the executor of the estate of the deceased plaintiff, Teresa Centeno, moves pursuant to
CPLR 1015 and 1021 to substitute herself as a party plaintiff in place and instead of the
decedent, to vacate the automatic stay of proceedings imposed by operation of law upon the
decedent’s death, and pursuant to CPLR 305(c) for leave to amend the caption accordingly
(MOT SEQ 009). The defendants oppose the motion. The defendants Donald S. Krieff, D.O.,
and Neurological Surgery, P.C. (together the Krieff defendants), cross-move, and the defendant
St. Joseph’s Hospital separately cross-moves, pursuant to CPLR 1021 to dismiss the amended
complaint insofar as asserted against each of them (MOT SEQ 009). Centeno opposes the
cross motions. The defendants Kenneth Wenke and Boston Scientific Corporation (together the
BSC defendants) separately move pursuant the CPLR 1021 to dismiss the complaint insofar as
805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 1 of 5 Motion No. 009 010
1 of 5 [* 1] INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
asserted against them (MOT SEQ 010). Centeno opposes the separate motion. Centeno’s
motion is granted, the cross motions are denied, and the BSC defendants’ separate motion is
denied.
The decedent commenced this action on October 25, 2019 by filing a summons with
notice (see CPLR 304). She served and filed the complaint on June 8, 2020, and served and
filed an amended complaint on January 8, 2021. On May 19, 2022, the decedent died, and all
proceedings in this action thus were automatically stayed by operation of law on that date,
pending substitution of a representative of her estate (see Perez v City of New York, 95 AD3d
675, 677 [1st Dept 2012]). This court memorialized the stay in an order dated July 28, 2022.
On September 1, 2023, the Surrogate’s Court, New York County, issued letters testamentary to
Centeno, thus appointing her as the executor of the decedent’s estate. She now moves to
substitute herself in this action for the decedent as a party plaintiff, to vacate the automatic stay,
and for leave to amend the caption accordingly. Centeno made the instant motion on October
19, 2023 (see CPLR 2211).
It is well settled that, where an administrator or executor is appointed as representative
of the estate of a decedent who was a party to a pending action, substitution and amendment of
the caption is appropriate (see Tag 380, LLC v Estate of Howard P. Ronson, 69 AD3d 471, 473-
474 [1st Dept 2010]). Centeno has submitted sufficient proof of her due appointment as
executor of the decedent’s estate.
Contrary to the defendants’ contentions, Centeno did not wait an unreasonable time to
seek appointment as executor or move for leave to substitute herself as the plaintiff in this
action. Rather, she petitioned the Surrogate’s Court only several months after the decedent’s
death, and waited only six weeks from the time that she was appointed executor to make the
instant motion. The issue of what constitutes a “reasonable time” within the meaning of CPLR
1021 depends on the circumstances of the case (see generally Randall v Two Bridges Assoc.
Ltd. Partnership, 139 AD3d 435 [1st Dept 2016]). Here, the defendants waited less than 18 805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 2 of 5 Motion No. 009 010
2 of 5 [* 2] INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
months after the decedent’s death to seek dismissal, and then only in response to the
executor’s motion to lift the stay and substitute herself as the plaintiff in this action. The court
concludes that those defendants did not wait for a sufficient period of time before moving to
dismiss the complaint pursuant to CPLR 1021, particularly because the decedent’s former
counsel and Centeno were working diligently since the decedent’s death to secure Centeno’s
appointment as executor of the decedent’s estate (see Dugger v Conrad, 189 AD3d 478 [1st
Dept 2020] [where defendant waited only 16 months before moving to dismiss, and former
counsel for deceased plaintiff was attempting to have the Public Administrator substituted as
plaintiff, dismissal was premature]; Tokar v Weissberg, 163 AD3d 1031, 1032-1033 [2d Dept
2018] [lapse of 2½ years between decedent's death and defendant's submission of motion to
dismiss under CPLR 1021 was insufficient to support defendant's contention that substitution
had not been made within a reasonable time, particularly where the case revolved around
medical records already in defendant's possession]; Wan Fund Leung v Yan Q. Sun, 2021 NY
Slip Op 32625[U], *3-4, 2021 NY Misc LEXIS 6320, *4-5 [Sup Ct, N.Y. County, Dec. 8, 2021]
[Kelley, J.] [where defendants waited only 18 months after decedent’s death, and a Surrogate’s
Court petition that had been filed by decedent’s heirs was pending, defendants did not wait a
sufficient amount of time before motion]). Hence, the court must grant Centeno’s motion, deny
the Krieff defendants’ and St. Joseph Hospital’s cross motions, and deny the BSC defendants’
separate motion.
In light of the foregoing, it is,
ORDERED that the motion of Evelyn Celeste Centeno (MOT SEQ 009) is granted, the
automatic stay of proceedings imposed by operation of law upon the death of the plaintiff
Teresa Centeno on May 19, 2022, as memorialized in this court’s order dated July 28, 2022, is
vacated and dissolved, and Evelyn Celeste Centeno, as executor of the estate of Teresa
Centeno, is substituted as a party plaintiff in place and instead of Teresa Centeno; and it is
further, 805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 3 of 5 Motion No. 009 010
3 of 5 [* 3] INDEX NO. 805351/2019 NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 01/23/2024
ORDERED that the cross motion of the defendants Donald S. Krieff, D.O., and
Neurological Surgery, P.C. (MOT SEQ 009), is denied; and it is further,
ORDERED that the cross motion of the defendant St. Joseph’s Hospital (MOT SEQ 009)
is denied; and it is further,
ORDERED that the motion of the defendants Kenneth Wenke and Boston Scientific
Corporation (MOT SEQ 010) is denied; and it is further,
ORDERED that the caption of the action is amended to read as follows:
------------------------------------------------------------------X
EVELYN CELESTE CENTENO, as Executor of the Estate of TERESA CENTENO, Deceased,
Plaintiff,
v
DONALD S. KRIEFF, D.O., NEUROLOGICAL SURGERY, P.C., ST. JOSEPH'S HOSPITAL, KENNETH WENKE, and BOSTON SCIENTIFIC CORPORATION,
Defendants.
--------------------------------------------------------------------------X
and it is further,
ORDERED that, within 15 days of the entry of this decision and order, the plaintiff shall
serve a copy of this decision and order upon both the County Clerk and the Clerk of the General
Clerk’s Office, which shall be effectuated in accordance with the procedures set forth in the
Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases, accessible
at the “E-Filing” page on the court’s website at https://www.nycourts.gov/ LegacyPDFS/courts/
1jd/supctmanh/Efil-protocol.pdf (nycourts.gov), and, to comply with those procedures, the
plaintiff shall (1) upload the decision and order to the NYSCEF system under document title
“SERVICE ON SUPREME COURT CLERK (GENL CLERK) W/COPY OF ORDER” AND (2)
separately file and upload the notice required by CPLR 8019(c) in a completed Form EF-22,
along with a copy of the decision and order, under document title “NOTICE TO COUNTY
805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 4 of 5 Motion No. 009 010
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CLERK CPLR 8019(C),” and the County Clerk and all appropriate court support offices shall
thereupon amend the court records accordingly.
This constitutes the Decision and Order of the court.
1/23/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C.
MOTION 9: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER REFERENCE CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
CROSS MOTION 1: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
CROSS MOTION 2: CASE DISPOSED X NON-FINAL DISPOSITION
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
MOTION 10: CASE DISPOSED X NON-FINAL DISPOSITION
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
805351/2019 CENTENO, TERESA vs. KRIEFF, D.O., DONALD S Page 5 of 5 Motion No. 009 010
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