Cullum v. 122 Fifth Assoc., LLC

2024 NY Slip Op 34530(U)

• Court: New York Supreme Court, New York County
• Decided: December 18, 2024
• Docket: Index No. 159517/2023
• Status: Unpublished

Opinion

Cullum v 122 Fifth Assoc., LLC 2024 NY Slip Op 34530(U) December 18, 2024 Supreme Court, New York County Docket Number: Index No. 159517/2023 Judge: Denise M. Dominguez 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. !FILED: NEW YORK COUNTY CLERK 12/30/2024 11:14 AMI INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M Justice ---------------------------------------------------------------------------------X INDEX NO. 159517/2023 JOHN CULLUM, EMILY FRANKEL MOTION SEQ. NO. 001 Plaintiff,

- V - DECISION+ ORDER ON 122 FIFTH ASSOCIATES, LLC,122 FIFTII ASSOCIATES, MOTION

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32 . were read on this motion to/for AMEND CAPTION/PLEADINGS

Upon reading the above listed documents, the motion by Farber Schneider Ferrari LLP,

counsel for Plaintiff JOHN CULLUM and Plaintiff EMILY FRANKEL, deceased, is granted.

As per the complaint, Plaintiffs seek to recover for damages to their property, located at 13

West 17th Street in Manhattan, allegedly caused by the Defendants' construction/development

project, known as 122 5th Avenue, located adjacent to the Plaintiffs' property.

This action was commenced on September 27, 2023 by the filing of the summons and

complaint. Per correspondence from Farber Schneider Ferrari LLP, dated May 21, 2024, this action

was stayed due to the death of Plaintiff EMILY FRANKEI, (NYSCEF Doc. 16, 28).

Farber Schneider Ferrari LLP now moves for an order to amend the complaint and caption

to substitute the deceased Plaintiff EMILY FRANKEL with JOHN C. CULLUM and ROGERS.

HABER, as Co-Executors of the Estate of Emily Frankel and to lift the stay and restore this matter

to active status. No opposition to the motion has been submitted. Upon review, the motion is

granted. 159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 1 of 4 Motion No. 001

[* 1] 1 of 4 !FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024

Pursuant to CPLR §1021, a motion for substitution due to the death of a party shall be made

within a reasonable time. (CPLR §1021; Strum v. Bressler, 214 A.D.3d 465 [1st Dept 2023];

Riedel v. Kapoor, 123 A.D.3d 996, [2d Dept 2014]). Farber Schneider Ferrari LLP have shown

that diligent efforts were made to identify an individual(s) to be appointed as the Executors of

Plaintiff EMILY FRANKEL's estate and that the within motion for substitution was pursued

shortly after the appointment of John C. Collum and Roger S. Haber as Executors (NYSCEF Doc.

29). Farber Schneider Ferrari LLP also submitted, at this Court's request, a clearer copy of the

Certificate of Appointment of Executors.

In light of the appointment of John C. Collum and Roger S. Haber as Executors of the

estate of EMILY FRANKEL, pursuant to CPLR § 1021, that portion of the motion which seeks to

substitute John C. Collum and Roger S. Haber as Co-Executors of the Estate of EMILY

FRANKEL, deceased, in place of EMILY FRANKEL, is granted. Additionally, in light of the

substitution, the complaint shall be amended as proposed (NYSCEF Doc. 31) and the stay shall be

lifted. Additionally, the parties are directed to submit a joint proposed Preliminary Conference

Order on consent as per Part 35 rules by January 27, 2025.

Accordingly, it is hereby

ORDERED that the motion to amend the complaint is granted, and it is further

ORDERED that all papers, pleadings, and proceedings in the above-entitled action be

amended by substituting the name of John C. Collum and Roger S. Haber as Co-Executors of the

Estate of EMILY FRANKEL, deceased, in place and stead of said decedent, without prejudice to

the proceedings heretofore had herein; and it is further

159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 2 of 4 Motion No. 001

[* 2] 2 of 4 !FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024

ORDERED that the caption be amended as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X JOHN C. CULLUM and ROGER S. HABER, as Co- Executors of the Estate of EMILY AMENDED SUMMONS FRANKEL, Deceased, and JOHN CULLUM, individually, Index No. 159517/2023 Plaintiffs,

- against-

122 FIFTH ASSOCIATES, LLC and 122 FIFTH ASSOCIATES Defendants. ------------------------------------------------------------------X

and it is further,

ORDERED that the Plaintiffs motion for leave to amend the complaint pursuant to CPLR

§3025 (b), is granted; and it is further

ORDERED that Plaintiff file the supplemental summons and amended complaint in the

proposed form annexed to the moving papers (NYSCEF Doc. 31) within 30 days of service of a

copy of this order with notice of entry; and it is further

ORDERED that the amended complaint in the proposed form annexed to the moving

papers (NYSCEF Doc. 31) shall be deemed served upon Defendants by service of a copy of this

order with notice of entry thereof; and it is further

ORDERED that Defendants shall serve an answer to the amended complaint or otherwise

respond thereto within 20 days from the date of service of this order with notice of entry; and it is

further

ORDERED that the stay is hereby lifted; and it is further

ORDERED that per Part 35 Rules, the parties are directed to submit a joint proposed

Preliminary Conference Order, setting forth the dates for the completion of any outstanding

159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 3 of 4 Motion No. 001

[* 3] 3 of 4 !FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024

discovery to the Part 35 Clerk via email at sfc-part35-c1erk@nycourts.gov on January 27, 2025 by

5 :00 p.m. to be So Ordered; and it is further

ORDERED that Farber Schneider Ferrari LLP, shall serve a copy of this order with notice

of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed

to amend their records to reflect such change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk's Office shall be made 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).

12/18/2024 DATE

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 4 of 4 Motion No. 001

[* 4] 4 of 4