Johana M. Lopez, Plaintiff, v. MTA BUS COMPANY METROPOLITAN TRANSIT AUTHORITY RICHARD ROSSETTI AND MOHEGAN SUN (2026)

The instant motion provides a unique example of the interplay between personal injury and Trust and Estate law occurring upon the death of a party.

Plaintiff was a passenger in a motor vehicle owned by former party Mohegan Sun and operated by defendant Richard Rossetti ("Rossetti"). It appears that this vehicle, while attempting to make a right turn, came into contact with a bus owned and operated by the MTA defendants ("MTA"). Plaintiff commenced this action by filing a summons and complaint on June 8, 2020. After some preliminary motion practice, and the dismissal of Mohegan Sun as a party, the defendant Rossetti filed a verified answer and counterclaim on October 14, 2020.

Unfortunately, Rossetti died on October 1, 2021. His spouse Joanne was appointed fiduciary of his estate by the Probate Court in Hamden Connecticut on March 9, 2022. While the Supreme Court and the parties were notified of Rossetti=s death by correspondence in December of 2021, information regarding Joanne's appointment as fiduciary was not provided in the same manner, and apparently was neither sought by, nor inquired about, by plaintiff at that time. Consequently, the following procedural saga ensued.

Shortly after her appointment, Joanne, as fiduciary, published a Notice to Creditors on September 20, 2022, and subsequently filed a notice with the Probate Court that she had not received any claims filed against the estate pursuant to said notice.

Plaintiff, seemingly oblivious of the need to ascertain information regarding decedent's estate in Connecticut, moved in Queens Supreme Court for the appointment of a Temporary Administrator (see CPLR 105; 1021). The unopposed motion was denied (Butler, J.) on the grounds, inter alia, that plaintiff's papers had failed to establish whether or not a fiduciary for the estate had, in fact, been appointed.

Shortly thereafter, Joanne, who had personal knowledge of the suit but still had not been served with a claim as fiduciary, filed a final report of her administration showing no claims were outstanding against the estate. The Probate Court resultantly issued a closing letter on March 28, 2023.

Meanwhile, plaintiff was busy appealing the denial of her application for the appointment of a temporary administrator. Unsurprisingly, that appeal was denied and the order affirmed on September 25, 2024.

Plaintiff thereupon filed a new motion with this court, supported by proof of the decree appointing Joanne as executrix, requesting her substitution as a party in place and stead of decedent. No mention of a closing notice was made. That motion was granted on default on April 14, 2025.

This brings us to the present motion brought by Joanne, purportedly as "former executrix", pursuant to CPLR 5015(a)(4), to vacate this Court's order of April 14, 2025. Her motion is grounded on the premise that the Court lacked subject matter jurisdiction to permit the above substitution because plaintiff had failed to timely file a claim against the estate prior to its closing.

Pursuant to CPLR 5015(a)(4), the court may relieve a party from an order upon such terms as may be just due to lack of jurisdiction. A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517 [1984]).

Specifically, Joanne relies on Connecticut General Statutes 45a-358 and 45a-363 for support. In essence, these statutes provide that claims against an estate must be presented in writing to a fiduciary within 150 days of the fiduciary=s appointment, and upon the fiduciary rejecting the claim, the claimant must either petition the Probate Court to review the rejection or file a complaint in the Superior Court (see Conn Gen Statutes 45a-358[a], 45a-363[b]). Her supporting memorandum of law sets forth several Connecticut cases holding that claims, complaints, or counterclaims in Connecticut actions should be dismissed on lack of subject matter jurisdiction grounds due to the failure of the claimants to present or file claims against the fiduciary prior to the institution of their lawsuits (see Harborside Conn. Ltd. P'ship v Witte, 2015 Conn. Super. LEXIS 1839, *8 [Sup Ct, CT 2015]; Richards v Wasilonsky, No. LLI-CV20-6025674S, 2023 Conn Super LEXIS 2545, *3 [Conn Super Ct Oct 24, 2023]; Riendeau v Grey, No. CV106002202S, 2010 Conn Super LEXIS 2019, at *9 [Super Ct Aug 10, 2010]; Richards v Wasilonsky, No. LLI-CV20-6025674S, 2023 Conn. Super. LEXIS 2545, *3 [Conn Super Ct Oct 24, 2023]).

In opposition, plaintiff contends Vehicle and Traffic Law 253 controls this situation. That statute specifically states:

Where an action has been duly commenced under the provisions of this section against a non-resident who dies thereafter, the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper.

Upon review of the papers, the Court finds the adage of mixing apples and oranges is pertinent herein. Movant is absolutely correct, based on the above quoted Connecticut statutory and case law, that this Court lacks subject matter jurisdiction to determine the validity of claims that may be asserted against a Connecticut estate. However, that is neither the issue at bar, nor, for that matter, the subject of the underlying cause of action.

The New York Supreme Court clearly has subject matter jurisdiction over causes of action involving non-resident defendants and the exercise of its power to substitute fiduciaries of said estates as parties has been found to be a constitutional exercise of its power (see Leighton v Roper, 300 NY 434 [1950]).

Further, the substitution of movant in place and stead of decedent is a procedural and not a substantive determination.

Under New York conflict-of-laws principles, matters of procedure are governed by the law of the forum (see Tanges v Heifelberg N. Am., Inc., 93 NY2d 48 [1999]). Here, the substitution of Joanne as fiduciary of the Estate in the place and stead of the decedent concerns the mechanism by which an action proceeds after a party's death and does not alter the substantive rights of the parties (see CPLR 1015, 1021; Pierre v King. 240 AD3d 531 [2d Dept 2025]). Moreover, the law of New York governs subject matter jurisdiction "because each state determines which of its courts, if any, may entertain an action on a claim involving foreign elements" (see Matter of the Wahistrom-Johnson Inter-Vivos Family Trust, 236 NYLJ 110 [Sur Ct, New York City 2006] [internal quotation marks and citations omitted]).

The case law cited by movant does not contradict these principles and are factually distinguishable. Unlike this matter, all of the proceedings referred to concerned Connecticut residents seeking to hold a Connecticut fiduciary liable in some fashion and were commenced subsequent to a decedent's death in contravention to that state's procedures. Accordingly, the Court finds the substitution granted pursuant to VTL 253 was procedurally proper.

Joanne's ultimate premise appears to be that since estate assets have been distributed, any judgment obtained by plaintiff would be uncollectible. As a result, she posits, further litigation would be fruitless and that circumstance deprives this Court of jurisdiction over Rossetti. This logic suffers from two fatal flaws.

First, it completely ignores the applicability of any insurance coverage which plaintiff could collect in the event defendant Rossetti's actions were found to be negligent and a proximate cause of the accident. While counsel blithely states such coverage evaporates upon decedent's death, neither the policy nor appellate case law supporting such theory is provided. And this legal analysis contradicts Connecticut statutory law (see Conn. Gen. Stat. 38a-342). Such argument also ignores the overriding principle that the estate would only be liable if such coverage was insufficient to cover the decedent's share of any potential award. No compelling reason has been set forth as to why Plaintiff should be deprived of the opportunity to obtain a determination of such liability.

Also, while a fiduciary may be protected for actions regarding distributions made under these circumstances, distributees are not (see Conn. Gen. Stat. 45a-356). While said statute does permit exoneration of a fiduciary if he or she makes a good faith distribution, it does not create a bar to claims which were not presented in a timely manner (see Rotas v Rotas, 2007 WL 2363217, at *3 [Conn Super Ct July 25, 2007]). In fact, Connecticut General Statute 45a-372(3) allows a creditor to commence litigation against estate beneficiaries after final distribution of the estate's assets when a claim was not timely presented to the fiduciary.

Significantly therefore, the language of these provisions does not, as asserted, extinguish all rights to recovery if a plaintiff does not timely file a notice of claim with the fiduciary. Rather, the likelihood of recovery is diminished. Analogous to the procedures existing in New York, the Connecticut statutes relied upon are merely procedural in nature and do not establish a total prohibition to the collection of such claims. (see SCPA § 1803; Tanges v Heidelberg N. Am., 93 NY2d 48 [1999]).

Accordingly, the motion is denied.

Short form order signed simultaneously herewith.

Dated: July 28, 2026

Hon. Peter J. Kelly, J.S.C.

Peter J. Kelly, J.