Sam Kyung Cho v. Yongshin Cho

45 A.D.3d 388, 845 N.Y.S.2d 302

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2007
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered June 22, 2006, which granted plaintiffs motion for leave to reargue, and upon reargument, adhered to its prior order, entered March 28, 2006, denying plaintiffs motion for partial summary judgment and, in the alternative, for a default judgment against the individual defendants, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of transferring the action to Surrogate’s Court, New York County, and otherwise affirmed, without costs.

The court properly denied plaintiffs motion for partial summary judgment. Plaintiff lacked standing to commence this action because only a duly appointed representative may maintain an action on behalf of an estate (see Palladino v Metropolitan Life Ins. Co., 188 AD2d 708 [1992]).

Since counsel advises the Court that plaintiff has obtained letters of administration, and in the interests of judicial economy, the action is transferred to the Surrogate’s Court, which is the more appropriate forum for adjudication of the issues raised herein (see Ahders v Ahders, 176 AD2d 230 [1991]). Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ.