Jones v. Penn Cent. Corp.

2024 NY Slip Op 30366(U)

• Court: New York Supreme Court, New York County
• Decided: February 1, 2024
• Status: Unpublished

Opinion

Jones v Penn Cent. Corp. 2024 NY Slip Op 30366(U) February 1, 2024 Supreme Court, New York County Docket Number: Index No. 154342/2023 Judge: Judy H. Kim 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. 154342/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/01/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 154342/2023 JAMES V JONES, MOTION DATE 06/07/2023 Plaintiff, MOTION SEQ. NO. 001 - V -

THE PENN CENTRAL CORPORATION NK/AAMERICAN PREMIER UNDERWRITERS, INC., CONSOLIDATED RAIL DECISION + ORDER ON CORPORATION, METRO-NORTH RAILROAD, MOTION

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

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 19 were read on this motion for SUBSTITUTION

In this negligence action brought under the Federal Employers' Liability Act, 45 USC §51

et seq., alleging, in sum and substance, that defendants were negligent in exposing employees,

including plaintiff James V. Jones, to cancer-causing chemicals and materials, plaintiff Geraldine

Herlihy, as representative of the estate of James V. Jones, now moves, pursuant to CPLR §§ 1015

and 1021, to vacate the automatic stay of proceedings imposed by operation oflaw upon Mr. Jones'

death and be substituted as plaintiff in his place. Herlihy also moves, pursuant to CPLR §305( c)

and CPLR §203(e), for an order granting plaintiff leave to amend the complaint to add a claim for

wrongful death and deem this claim timely filed.

DISCUSSION

It is well settled that, where an administrator or executor is appointed as representative of

the estate of a decedent who was the party to a pending action, substitution and amendment of the

caption, upon motion, is proper (See~' Tag 380, LLC v Estate of Howard P. Ronson, 69 AD3d

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471, 473-474 [1st Dept 2010]). In this case, movant has submitted sufficient proof that she is the

duly appointed executor of the decedent's estate (i.e., the Last Will and Testament and Death

Certificate of decedent and New Jersey Monmouth County Surrogate's Court Executor Short

Certificate). Accordingly, that branch of the motion to vacate the stay of this action, substitute

movant for plaintiff James V. Jones, and amend the caption to reflect this substitution is granted

without opposition.

However, that branch of the motion to amend the complaint to add a wrongful death claim

is denied without prejudice. Generally,"[ o]n a motion for leave to amend a pleading, movant need

not establish the merit of the proposed new allegations, but must simply show that the proffered

amendment is not palpably insufficient or clearly devoid of merit" (Miller v Cohen, 93 A.D.3d

424,425 [1st Dept 2012] [internal quotation marks omitted]). However, "[a] motion seeking leave

to amend a personal injury complaint to assert a cause of action for wrongful death must be

supported by competent medical proof of the causal connection between the alleged [negligence]

and the death of the original plaintiff' (Cruz v Brown, 129 AD3d 455,456 [1st Dept 2015] [internal

citations omitted]; see also Griffin v New York City Auth., 1 AD3d 141, 142 [1st Dept 2003]).

Here, no expert affidavit or other competent medical proof has been submitted.

While a decedent's death certificate may, under certain circumstances, be sufficient to

establish a causal connection (See ~ ' Gosse v St. Peter's Hosp. of City of Albany, 23 Misc 3d

892, 900 [Sup Ct, Albany County 2009]) it is insufficient to do so here-the proposed amended

complaint alleges that as a proximate result of defendants' negligence, the decedent sustained

injuries including bladder cancer and lymphoma, resulting in his eventual death (NYSCEF Doc.

No. 24 [Proposed Am. Compl. at ,J86]) while the death certificate lists the cause of death as

cardiopulmonary arrest due to (or as a consequence of) congestive heart failure.

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Accordingly, it is

ORDERED that the motion of Geraldine Herlihy, as executor of the estate of James V.

Jones, deceased, to be substituted as plaintiff in this action and amend the caption accordingly is

granted, without opposition; and it is further,

ORDERED that the automatic stay of proceedings imposed by operation of law upon the

decedent's death is dissolved; and it is further

ORDERED that the caption is amended to read as follows:

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------------- X GERALDINE HERLIHY, Executrix for the Estate of JAMES V. JONES,

Plaintiff, Index No. 154342/2023

-against-

THE PENN CENTRAL CORPORATION a/k/a AMERICAN PREMIER UNDERWRITERS, INC., CONSOLIDATED RAIL CORPORATION and METRO-NORTH RAILROAD,

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

and it is further

ORDERED that the branch of plaintiff's motion for leave to amend the complaint to add

a cause of action for wrongful death is denied without prejudice; and it is further

ORDERED that movant shall, within twenty days of the date of this decision and order,

serve a copy of this decision and order, with notice of entry, upon the County Clerk and the Clerk

of the General Clerk's Office, who are directed to mark the court's records to reflect the change in

the caption herein; and it is further

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's

Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse

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and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on

the court's website).

This constitutes the decision and order of the Court.

2/1/2024 DATE HON. JUDY H. KIM, J.S.C.

~ 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

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