Petrasova v. Walker Ridge Constr. NY LLC

2024 NY Slip Op 34564(U)

• Court: New York Supreme Court, Kings County
• Decided: December 18, 2024
• Docket: Index No. 530621/2023
• Status: Unpublished

Opinion

Petrasova v Walker Ridge Constr. NY LLC 2024 NY Slip Op 34564(U) December 18, 2024 Supreme Court, Kings County Docket Number: Index No. 530621/2023 Judge: Devin P. Cohen 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: KINGS COUNTY CLERK 01/03/2025 10:04 AM INDEX NO. 530621/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/03/2025

Supreme Court of the State ofNew York Index Number 530621/2023 County of Kings Seqs.002

Part LLl flt DECISION/ORDER Recitation, as required by CPLR §2219 (a}, of the. papers considered in-the review oftl1is Motion

MAR[A PETRASOV A AS ADMINISTRATOR OF THE EsrATE OF Papers Numbered MILAN DUQZAK, Notice of Motion and Affidavits Annexed .... _J_ ..Order to Show Cause and Affidavits Annexed. AiisweringAffidavits ___ ......... _..... _.. .c.bl.. Plaintiff, Replying Affida,iits ...... , ... , .. , _.. , ..... ____f_ ExhibitL .. ,_ .... , ..... _, .. , . . . . ... , ..... ..Yw:... Other:,-.. -.,-._-. .-.,- .... ,_ .....--_._ .. _.....-...._.,- .. _ against

WALKER RIDGE CONSTRUCTION NYLLC AND289 3RD AVENUELLC;

Defendants.

289 3RD AVENUE LLC,

Third~Party Plaintiff,

against

SLOVITINC. AND KAJ NY CONSTRUCTION, INC.,

Third-Party Defendants.

W ALKERRIDGE CONSTRUCTIONNY LLC;

Second Third~Party Plaintiff,

SLOVITINC. AND KAJNY CONSTRUCTION, INC.,

Second Third-Party Defendants;

Based on the fore:going papers, third-party defendant/secort<;lthird-parly defendant'Ei

motion to dismiss the primary complaint (Seq: 002) is decided as follows:

i

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Introduction and Factual Background

The decedent's estate commenced this action to recover for damages resulting from the

anaccidentwhich allegedly occurred on November I, 2021. On November29, 2021, the

decedent's sister; Maria Petrasova, signed a general release of liability as to the defendants in

exchange for $2,000. Ms. Petrasovahad not, at the.time she signed the agreement, been

·appointed as th.e administrator ofthedecedent'se1:,tate. Theinstantlawsuitwas commencedon

Qctobef23, 2023, and Ms. Petrasova was granted temporary letters of administration on January

16, 2024. Plaintiff was permitted to serve an amended summons and complaintnunc ptotunc on

February 7, 2024. Now, SJovitinc. (Slovit) moves to dismiss the complaint, contending that the

suit is barred by the general release executed by Ms; Petrasova.

Analysis

Slovit's motion seeks diSni.issa1 pursuant to CPLR 3211 (a) (1) and (a) (7) (notably,

Slovit does not move under section [a] [5]). To dismiss a claim pursuant to CPLR 3211 (a.)(1),

the inovant must produce documents that resolve "all factual issues as a matter of law, and

c:onclusively [dispose] of the plaintiff's claim" {53 4 K, LLC v Flagstat Bank FSB, 187 AD3d

97 I [2d Dept 2020]; see also Braun Sollet v Dahan, 173 A.D.3d 803, 805 [2d Dept 2019]).

Documentary evidence for the purpose ofthfs statute includes "out-of-court transactions such as

mortgages, deeds, contl'acts, and any other papers, the contents of which are essentially

undeniable"(McDonald v O'Connor, 189 AD3d 1208, 1210 [2dDept2020]).

"Under CPLR 3211 (a) (7), the applicable test is whether the pleading states a cause of

action, not whethe'rthe proporient ofth~ pleading, .in fact, has a meritorious cause ofaction ...

·The court ntust determine whether, ac:cepting ii.Stnie the factual averment~. ofthe co111plaint and

according the plaintiff the benefits. of all favorable inferences which may be drawn therefrom,

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the plaintiffcan succeed upon any reasonable view of the facts stated" (Board of Educ. Of City

School Dist. Of City of New Rochelle v County ofWestchester, 282 AD2d 561 [2d Dept 2001 ]).

Slovit argues that plaintiff duly executed a telease settling an claims against· Walker Ridge Construction NY LLC, 289 3rd Avenue.LL('., and Slovitbefore commern;ing the instant

action. The·release is the·docuntentary·evidence on which Slovit relies in seeking dismissal.

Slovit; and the direct.defendants in support ofSlovit's motion, cite cases from the Third and

·Fourth Departments where the sole beneficiary of an estate was pemiitted to "extinguish a claim

without intervention of the estate's legal representatives" (Carter v County of Clinton, 197 AD2d

820 [3d Dept 1993]; Banker v Strong Mem 'I Hosp., 210 AD2d I 007 [4th 1994]). The supporting

papers do not citeany casesfrom the First or Second departments that support this proposition.

In opposition, plaintiff contends that she did not have the legal authority to settle the

action because she was not yet the administrator. Ms. Petrasova, therefore,. did not have the

authority tp cornpromise the action atthe time she signed the general release.

Although it is true that "a settlement agreement or release , .. may be the basis for a

CPLR 3211 (a) (l) [or (a) (7)] motion to dismiss," that is only true ''where the tertns are clear

and unambiguously and Conclusively dispose of the matter" (Burgos vNew York Presb; Hosp,,

I 55 AD3d 598 [2d Dept201 71); Here, Slovit does not identify, and the court is not aware of,

any caselaw indicating that a proposed administrator's compromise of a wro·ngful death action

can be ratified after the .fact if the proposed administrator is duly appointed. In the absence ofa

legally binding release signed by an individual with authority to compromise the estate's claims 1

there i.s no. basis for dismissal. Additionally, even if the court were inclined to .follow the· Third

and Fourth Department cases.cited, the .argument that Ms. Petrasova was. clothed with authority

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to compromise. the action because she was the sole beneficiary is undermined by the plaintiffs bill of particulars which identifies six distributees of the estate (ii 17).

Finally, it would coU11tervail public policy to grant Slovit's motion. New York's Estates

Powers and Trusts Law, particularly sections5- 4.6, sets forth the procedure forjudicial approval

of compromises in wrongful death actions. These procedural safeguards were implemented to

guard against unfair or inadequate comprises in wrongful death actions. Here; the plaintiff's

sister, who is potentially not the sole beneficjary of the estate,is purported to have compromised

a wrongful death action for the exceedingly small sum of$2,000. This compromise was not subject to the judicial review required by the EPTL. Judicial review is also required by the

letters "of administration" routinely issued by the Surrogates' Court (including those eventually

issµed to Ms. Petrasova), which prohibit ·administrators.from compromising actions without

further order of the court. Absent judicial review, the intended safeguards against permitting one

distributee to prejudice all others would be undermined. Finally, the legislative intent toprevent

inadeg_uate·settlements in·Wrongful death actions would be frustrated {see Pollicina v

Miseicordia Hop. Medical Center; 82NY2d332 [1993]; see also EPTL 5-4.6 [b]),

Therefore, Slovit's motion to dismiss is denied.

Conclusion

SloviCs motion to dismiss (Seq. 002} is denied.

This constitutes the decision of the court.

December 18. 2024 DATE DEVINE, COHEN Justice of the Supreme Court

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