GRAULAU v. ROSENBERG (2020)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause of Ralph Graulau and Jeanette Depinto (hereinafter the plaintiffs or movants), electronically filed on March 13, 2020, for an order: (1) appointing defense counsel, Longo & D'Apice, Esqs., or in the alternative, appointing Allstate Insurance Company, as temporary administrator of the estate of deceased defendant, Arnold W, Rosenberg, for purposes of this litigation; (2) lifting the stay imposed by the death of the decedent; and (3) amending the caption.

Order to Show Cause

Affidavit of service

Affirmation in opposition

Exhibits A-D

Affirmation in reply

BACKGROUND

On June 10, 2019, the plaintiffs commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. On July 2, 2019, defendant Arnold W. Rosenberg interposed a verified answer.

Plaintiffs' verified complaint and bill of particulars allege the following salient facts. On November 15, 2017 at approximately 12:45 P.M., Ralph Graulau was at a parking lot, located at 976 Third Avenue in the County of Kings and State of New York, operating a parked motor vehicle bearing New York State registration number FFE6663. At the same time and date Jeanette Depinto was a pedestrian in the same parking lot.

Also at the same parking lot defendant Arnold W. Rosenberg was operating a motor vehicle bearing New York State registration number 516690. At that time, date and place, the motor vehicle operated by defendant, Arnold W. Rosenberg, and the parked motor vehicle operated by plaintiff, Ralph Graulau collided. At that time, date and location the motor vehicle driven by Arnold W. Rosenberg also came into contact with Jeanette Depinto. The contact with Ralph Graulau's vehicle and with Jeanette Depinto was caused by Arnold W. Rosenberg's negligent operation of his vehicle. The contact seriously injured the plaintiffs.

On October 17, 2019, Andrew W. Rosenberg passed away. By notice of motion filed on January 20, 2020, under motion sequence number one, the plaintiffs sought an order seeking the same relief sought in the instant order to show cause.

By decision and order dated February 1, 2020, this Court stayed the action pursuant to CPLR 1015 and denied the motion because the plaintiffs had moved by notice of motion rather than by order to show cause.

LAW AND APPLICATION

If a party dies and the claim for or against him or her is not thereby extinguished the court shall order substitution of the proper parties (CPLR 1015 [a]). A motion for substitution may be made by the successors or representatives of a party or by any party (CPLR 1021; Dieye v. Royal Blue Servs., Inc., 104 AD3d 724, 725 [2nd Dept 2013]).

In most instances, the personal representative of the decedent's estate should be substituted in the action (Laroche v. Laroche, 162 AD3d 1000, 1001 [2nd Dept 2018], citing Weinstein-Korn-Miller, NY Civ Prac ¶ 1015.06; see also Grillo v. Tese, 113 AD2d 871, 873 [2nd Dept 1985]). However, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent (see Grillo, 113 AD2d at 873; see also Matter of St. Luke's-Roosevelt Hosp. Ctr., 261 AD2d 320, 320—321 [1st Dept 1999]).

The 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 (Dieye, 104 AD3d at 726). The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court (see Rosenfeld v. Hotel Corp. of Am., 20 NY2d 25, 28 [1967]; Lambert v. Estren, 126 AD3d 942, 943 [2nd Dept 2015]).

On December 17, 2019, defense counsel informed the plaintiffs that defendant, Arnold W. Rosenberg had passed away on October 7, 2019. The plaintiffs were aware that Arnold W. Rosenberg was survived by his wife, Mrs. Gail Rosenberg. In fact, they served her with a copy of the notice of motion they first filed under motion sequence number one. They also sent her a letter on January 2, 2020, requesting that she provide information relating to the status of the estate proceedings regarding the estate of Arnold W. Rosenberg.

The plaintiffs were clearly aware of the existence of the Mrs. Gail Rosenberg as the decedent's next of kin. However, apart from sending her the one aforementioned letter, they did not indicate what steps, if any, they took to obtain her cooperation. Under these circumstances, the plaintiffs failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice (see id. at 944; Kastrataj v. Blades, 136 AD3d 756, 758 [2nd Dept 2016]). Accordingly, the order to show cause by Ralph Graulau and Jeanette Depinto is denied in its entirety.

CONCLUSION

The order to show cause by Ralph Graulau and Jeanette Depinto for an order appointing defense counsel, Longo & D'Apice, Esqs. as temporary administrator of the estate of deceased defendant, Arnold W. Rosenberg, for purposes of the instant litigation is denied.

The order to show cause by Ralph Graulau and Jeanette Depinto for an order appointing Allstate Insurance Company as temporary administrator of the estate of deceased defendant, Arnold W. Rosenberg, for purposes of the instant litigation is denied.

The order to show cause by Ralph Graulau and Jeanette Depinto for an order lifting the stay imposed by the death of the Arnold W. Rosenberg is denied.

The order to show cause by Ralph Graulau and Jeanette Depinto for an order amending the caption is denied.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.