PEÑA v. RUCON PROPERTIES LLC (2008)

On September 14, 2004, plaintiff Rafael Peña commenced this action seeking to recover money damages for personal injuries sustained during a slip and fall that occurred on August 15, 2004, at the premises owned and operated by defendants.   Although plaintiff died in January 2007, no administrator of the Estate of Rafael Peña has been substituted in place of Rafael Peña.   Defendants now move, pursuant to CPLR § 1015, for a court order directing the attorney for the deceased plaintiff before his demise to have an administrator appointed to the Estate of the deceased plaintiff for the purpose of prosecuting this action.   Although unopposed, the motion is denied for the reasons explained below.

Discussion

 The case is abundantly clear that the former attorney for the now-deceased plaintiff has no authority to act once the client expired.   See e.g., Gonzalez v. Ford Motor Co., 295 A.D.2d 474, 744 N.Y.S.2d 468 (2nd Dept.2002).   Plaintiff's former counsel may not make a substitution for the decedent sua sponte, but must instead be granted the authority to do so from the prospective new plaintiff.  Manhanaim Resort Corp. v. Samples, 156 A.D.2d 342, 548 N.Y.S.2d 295 (2d Dept.1989);  Weber v. Bellinger, 124 A.D.2d 1009, 508 N.Y.S.2d 779 (4th Dept.1986).   Further, once proper and valid substitution has been made, the new representative is by no means required or obligated to remain with the deceased plaintiff's legal authority.  Id.

 This does not imply, nor should be construed as saying that defendants are powerless to act once plaintiff died.   There are two statutory exceptions to the stay that automatically results upon a party's death.   While not statutorily required, defense counsel may take any affirmative steps to effectuate substitution on behalf of a deceased plaintiff.   See CPLR § 1021.   Alternatively, CPLR § 1021 grants the defendant the option of moving to dismiss for failure to make a timely substitution.   See e.g., Washington v. Min Chung Hwan, 20 A.D.3d 303, 799 N.Y.S.2d 31 (1st Dept.2005);  Palmer v. Selpan Elec. Co., 5 A.D.3d 248, 773 N.Y.S.2d 289 (1st Dept.2004).

 However, before the action is subject to dismissal, the deceased plaintiff's family must be afforded a reasonable time to effectuate the required substitution.   See Blank v. Schafrann, 206 A.D.2d 771, 615 N.Y.S.2d 107 (3rd Dept.1994).   For example, in Gonzalez v. Ford Motor Co., 295 A.D.2d 474, 744 N.Y.S.2d 468 (2nd Dept.2002), the decedent's father, as administrator of decedent's estate, brought an action to recover damages for personal injuries and wrongful death.   The father subsequently died, and defendants moved to dismiss the complaint for failure to appoint a substitute administrator within a reasonable time.   The trial court dismissed the complaint and denied the motion of decedent's sister, who eventually had been substituted as administrator of the estate, to vacate its prior order as a nullity.   The Appellate Division, however, vacated the dismissal holding that because no persons interested in decedent's estate had been provided with notice of the motions to dismiss, the Supreme Court lacked jurisdiction to act.   See also, Blank v. Schafrann, 206 A.D.2d 771, 615 N.Y.S.2d 107 (3d Dept.1994).

Conclusion

 In short, defendants' motion seeking, pursuant to CPLR § 1015, a court order directing the attorney for the deceased plaintiff to have an administrator appointed to the Estate of the deceased plaintiff, for the purpose of prosecuting this action, is denied.   Except for the aforementioned two statutory grounds, this Court lacks authority and jurisdiction over this action upon the death of plaintiff.   See Topal v. BFG Corp., 108 A.D.2d 849, 485 N.Y.S.2d 352 (2nd Dept.1985). Instead, counsel for defendants should do the necessary research required to ascertain the name and location of the deceased plaintiff's heirs, which would allow them to exercise one of the two statutory exceptions to the stay that automatically results upon a party's death.

This constitutes the Decision and Order of this Court.

DIANNE T. RENWICK, J.