Maldonado v. Law Office of Mary A. Bjork

Appellate Division of the Supreme Court of New York

Maldonado v. Law Office of Mary A. Bjork

64 A.D.3d 425, 882 N.Y.S.2d 118

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 2009

StatusPublished

Cited by6 cases

This text of 64 A.D.3d 425 (Maldonado v. Law Office of Mary A. Bjork) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maldonado v. Law Office of Mary A. Bjork, 64 A.D.3d 425, 882 N.Y.S.2d 118 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, Bronx County (Alexander Hunter, Jr., J.), entered December 26, 2008, which, to the extent appealable, denied defendant’s motion to dismiss the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

[426]*426In December 2006, just before the statute of limitations expired (CPLR 214 [5]), plaintiff commenced this action naming as sole defendant the driver of a car that had allegedly struck plaintiffs car, injuring plaintiff. However, that driver had died in December 2004. After trying to identify an administrator of the driver’s estate and starting a second action against the driver’s wife, on the mistaken belief that she was the administrator of his estate, plaintiff moved to substitute, as a party defendant, the law firm assigned to this matter by the deceased driver’s liability insurer. That motion was granted on default and the court subsequently denied the law firm’s motion to vacate the default and dismiss the complaint.

Since one cannot commence an action against a deceased person, this action was a nullity from its inception (see Marte v Graber, 58 AD3d 1, 2-3 [2008]). Consequently, the motion court lacked jurisdiction to hear and determine the initial action and erred in denying defendant’s motion to dismiss. Concur— Andrias, J.P., Sweeny, McGuire, Acosta and Richter, JJ.

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Order, Supreme Court, Bronx County (Alexander Hunter, Jr., J.), entered December 26, 2008, which, to the extent appealable, denied defendant’s motion to dismiss the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

[426]*426In December 2006, just before the statute of limitations expired (CPLR 214 [5]), plaintiff commenced this action naming as sole defendant the driver of a car that had allegedly struck plaintiffs car, injuring plaintiff. However, that driver had died in December 2004. After trying to identify an administrator of the driver’s estate and starting a second action against the driver’s wife, on the mistaken belief that she was the administrator of his estate, plaintiff moved to substitute, as a party defendant, the law firm assigned to this matter by the deceased driver’s liability insurer. That motion was granted on default and the court subsequently denied the law firm’s motion to vacate the default and dismiss the complaint.

Since one cannot commence an action against a deceased person, this action was a nullity from its inception (see Marte v Graber, 58 AD3d 1, 2-3 [2008]). Consequently, the motion court lacked jurisdiction to hear and determine the initial action and erred in denying defendant’s motion to dismiss. Concur— Andrias, J.P., Sweeny, McGuire, Acosta and Richter, JJ.

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Bluebook (online)

64 A.D.3d 425, 882 N.Y.S.2d 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maldonado-v-law-office-of-mary-a-bjork-nyappdiv-2009.

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