Sears v. Rich
This text of 2024 NY Slip Op 50026(U) (Sears v. Rich) is published on Counsel Stack Legal Research, covering New York Supreme Court, Nassau County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
| Sears v Rich |
| 2024 NY Slip Op 50026(U) |
| Decided on January 11, 2024 |
| Supreme Court, Nassau County |
| Kapoor, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on January 11, 2024
Selina Sears, Plaintiff,
against Ronne Rich and CVS PHARMACY, INC., Defendants. |
Index No. 607597/2019
Sarika Kapoor, J.
NYSCEF document nos. 53 — 78 were read and considered in deciding this motion.
The plaintiff moves (1) pursuant to CPLR 1015 and 1021 to appoint Lewis John Avallone Aviles, LLP, counsel for the deceased defendant Ronne Rich (hereinafter Rich), or other guardian, as temporary administrator of Rich's estate for purposes solely as representative in this action and for substitution of that administrator in her place, (2) to lift the automatic stay, amend the caption to reflect this substitution, and permit discovery and trial to go forward.
Background
The plaintiff allegedly was injured when she was struck by shelving inside of a CVS Pharmacy, which was caused to fall when a vehicle driven by Rich crashed through the exterior wall of the building. In June 2019, the plaintiff commenced this action against Rich and the defendant CVS Pharmacy, Inc. (hereinafter CVS), to recover damages for personal injuries. By decision and order entered March 17, 2021, this Court (Mahon, J.) granted the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against Rich. By decision and order entered October 25, 2021, this Court (Mahon, J.) denied CVS's motion for summary judgment dismissing the complaint insofar as asserted against it, without prejudice to renew [*2]upon the completion of discovery. Rich died on March 15, 2022.
Motion Sequence 003
The plaintiff moves (1) pursuant to CPLR 1015 and 1021 to appoint counsel for Rich, Lewis John Avallone Aviles, LLP, or other guardian, as temporary administrator of Rich's estate for purposes solely as representative in this action and for substitution of that administrator in her place, (2) to lift the automatic stay, amend the caption to reflect this substitution, and permit discovery and trial to go forward. In an attorney affirmation submitted in support of the motion, counsel for the plaintiff asserts that, as Rich's attorneys have failed to appoint an administrator with no resolution in sight, the Court should appoint defense counsel as temporary administrator to allow the case to proceed and to avoid prejudice to the plaintiff. Counsel asserts that good-faith efforts have been made to appoint an administrator, and summarizes a number of emails that were sent by the plaintiff and CVS to defense counsel, and to counsel for Rich's estate, Eric Cherches, Esq. inquiring as to whether the estate would be substituted for Rich in this action.
In an attorney affirmation in opposition, counsel for Rich asserts that counsel was assigned by Rich's insurer, Allstate Insurance Companies (hereinafter Allstate). Counsel asserts that an insurance-appointed attorney is not a "proper party" to be named as administrator under CPLR 1021(a). Counsel also asserts that there is no urgency here, as depositions have not yet been conducted, and the action was not on the eve of trial. Counsel assert that they do not contend that appointment of an administrator is inappropriate; rather, counsel contends that their office is not the appropriate party to be appointed.
In an attorney affirmation in reply, counsel for the plaintiff asserts that defense counsel is a proper party because (a) a law firm is authorized by law to be fiduciary and, therefore, a temporary administrator (b) Allstate has not disclaimed coverage for Rich, (c) the plaintiff's claims against Rich are limited to the available insurance, (d) defense counsel owes a duty to the client to avoid an excess judgment, and (e) as the available Allstate insurance is the only asset at risk, there is no risk to the estate, and therefore defense counsel is the proper party to defendant the estate. Counsel for the plaintiff also contends, in the alternative, that this Court can use its inherent power to appoint the Public Administrator of Nassau County to act as temporary administrator for this litigation only and hold them harmless for any proceeds possibly recovered by the plaintiff beyond the insurance coverage maintained by Rich.
Discussion
"'[I]t is well established that the dead cannot be sued'" (Matter of Foreclosure of Tax Liens, 165 AD3d 1112, 1116 [2d Dept 2018], quoting Marte v Graber, 58 AD3d 1, 3 [1st Dept 2008]). "[I]f the death of a party occurs after the commencement of a proceeding or action, 'and the claim for or against him [or her] is not thereby extinguished[,] the court shall order substitution of proper parties'" (Matter of Foreclosure of Tax Liens, 165 AD3d at 116, quoting CPLR 1015[a]). "'A motion for substitution may be made by the successors or representatives of a party or by any party'" (Matter of Foreclosure of Tax Liens, 165 AD3d at 116, quoting CPLR 1021). "The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without a substitution will generally be deemed a nullity. A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased [*3]party's successors in interest, and such a motion is not a mere technicality" (Matter of Foreclosure of Tax Liens, 165 AD3d at 116-117 [citations and internal quotation marks omitted]).
"In most instances, a personal representative appointed by the Surrogate's Court should be substituted . . . to represent the decedent's estate. However, in the event no such representative exists, an appropriate appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent. Indeed, [t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action [or proceeding]. The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court" (id. at 117 [citations and internal quotation marks omitted]). Where a plaintiff agrees to limit the amount of recovery sought to the limits of any insurance coverage, the estate will not be adversely affected by the continuation of an action and, under such circumstances, there is no special need for the plaintiff to proceed in Surrogate's Court, and the Supreme Court may properly exercise its authority to appoint a temporary administrator to avoid delay (see Dieye v Royal Blue Servs., Inc., 104 AD3d 724, 726 [2d Dept 2013]).
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2024 NY Slip Op 50026(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-rich-nysupctnss-2024.