Rosen v. Schwartz

2017 NY Slip Op 2517, 148 A.D.3d 653, 49 N.Y.S.3d 301

Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered February 29, 2016, which granted defendant’s motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the complaint reinstated.

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions (see Hirsch v Mastroianni, 80 AD2d 633, 634 [2d Dept 1981]; Albicocco v Nicoletto, 11 AD2d 690 [2d Dept 1960], affd 9 NY2d 920 [1961]). A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder. To the extent Supreme Court decided whether defendant may inherit from his mother’s estate, no ruling on that question was sought by plaintiffs, and, in any event, the ruling was not only premature, but should be determined in the Surrogate’s Court (see e.g. Matter of Demesyeux, 42 Misc 3d 730 [Sur Ct, Nassau County 2013]).

Concur — Tom, J.P., Moskowitz, Feinman, Gische and Kapnick, JJ.