GONZALEZ v. (and a third-party action). (2002)

In an action to recover damages for personal injuries and wrongful death, the appeal is from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated February 27, 2001, which granted the defendants' respective motions, in effect, to dismiss the complaint insofar as asserted against them for failure to appoint a substitute administrator for the Estate of Pedro Caamano within a reasonable time, and (2) an order of the same court, dated August 1, 2001, which denied the plaintiff's motion, inter alia, to vacate as a nullity the order dated February 27, 2001, and to substitute a new administrator.

ORDERED that the appeal from the order dated February 27, 2001, is dismissed;  and it is further,

ORDERED that the order dated August 1, 2001, is reversed, on the law, and as a matter of discretion, the plaintiff's motion is granted, and Ramona Blanca Brea, as substituted Administrator Ad Prosequendum of the Estate of Pedro Caamano, is substituted as the plaintiff in this action, and the order dated February 27, 2001, is vacated;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

This is an action to recover damages for personal injuries and the wrongful death of Pedro Caamano, who allegedly died when he was run over by a truck manufactured by the defendant Ford Motor Co. (hereinafter Ford).   Caamano's father commenced this action after he was appointed administrator of Caamano's estate.   During discovery, however, the father died.   Caamano's widow and adult child lived in Spain, and the attorney who had represented the father had difficulty in getting a substitute administrator appointed for Caamano's estate.   The defendants separately moved to dismiss the complaint pursuant to CPLR 1021 for the failure to appoint a substitute administrator within a reasonable time.   However, no person interested in Caamano's estate was provided with notice of the motions, as required by CPLR 1021.   Nevertheless, in an order dated February 27, 2001, the Supreme Court dismissed the complaint.

About two months later, the appropriate New Jersey court granted letters of administration to Caamano's sister to represent his estate.   She then retained the father's attorney, who moved in the present action, inter alia, to vacate as a nullity the order dated February 27, 2001, and to substitute her as administrator of the decedent's estate.   In an order dated August 1, 2001, the Supreme Court denied the motion.

 The order dated February 27, 2001, must be vacated as a nullity.   Upon the father's death, the law firm representing him no longer had any authority to act on the father's behalf in this action (see Meehan v. Washington, 242 A.D.2d 286, 660 N.Y.S.2d 737;  Macomber v. Cipollina, 226 A.D.2d 435, 641 N.Y.S.2d 64), proceedings in the action were automatically stayed, and the Supreme Court was divested of jurisdiction to act (see Kelly v. Methodist Hosp., 276 A.D.2d 672, 714 N.Y.S.2d 524;  Sargoy v. Wamboldt, 183 A.D.2d 763, 583 N.Y.S.2d 488).   Although CPLR 1021 is an exception to the latter principle, the Supreme Court must first obtain jurisdiction over the persons interested in the decedent's estate by serving them as prescribed in CPLR article 3 (see Macomber v. Cipollina, supra at 437, 641 N.Y.S.2d 64;  Topal v. BFG Corp., 108 A.D.2d 849, 485 N.Y.S.2d 352).   In this case, no persons interested in the decedent's estate were provided any notice of the defendants' respective motions to dismiss the complaint pursuant to CPLR 1021.   Although notice was provided to the law firm which represented the father, such service was insufficient to obtain jurisdiction over the persons interested in the decedent's estate (see Macomber v. Cipollina, supra ).

Moreover, the Supreme Court improvidently exercised its discretion in denying that branch of the motion pursuant to CPLR 1015, which was to substitute Caamano's sister as administrator of his estate (see Encalada v. City of New York, 280 A.D.2d 578, 720 N.Y.S.2d 806;  Petty v. Meadowbrook Distrib. Corp., 266 A.D.2d 88, 698 N.Y.S.2d 659;  Macomber v. Cipollina, supra at 437, 641 N.Y.S.2d 64;  Brogan v. Mary Immaculate Hosp. Div. of Catholic Med. Ctr. of Brooklyn & Queens, 209 A.D.2d 663, 619 N.Y.S.2d 325;  Egrini v. Brookhaven Mem. Hosp., 133 A.D.2d 610, 519 N.Y.S.2d 716;  cf. Suciu v. City of New York, 239 A.D.2d 338, 657 N.Y.S.2d 1007).

The defendants' remaining contentions are without merit.