Rosen v. Schwartz

Appellate Division of the Supreme Court of New York

Rosen v. Schwartz

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

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

DecidedMarch 30, 2017

Docket3578 157124/15

StatusPublished

This text of 2017 NY Slip Op 2517 (Rosen v. Schwartz) 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

Rosen v. Schwartz, 2017 NY Slip Op 2517, 148 A.D.3d 653, 49 N.Y.S.3d 301 (N.Y. Ct. App. 2017).

Pincite

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 *654 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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 *654 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.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 2517, 148 A.D.3d 653, 49 N.Y.S.3d 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosen-v-schwartz-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack