Sergio Fernandez Gonzalez, Plaintiff, v. Edward J. Callegari, Defendant. (2026)

The following papers efiled on NYSCEF were used on this motion: Doc Nos. 15-30.

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion by Plaintiff is determined as follows.

Background

On February 21, 2022, near the intersection of Bay Parkway and Shore Parkway, Defendant Edward J. Callegari's vehicle allegedly came in contact with the rear of Plaintiff Sergio Fernandez Gonzalez's vehicle, and the driver left the scene without exchanging information (see NYSCEF Doc No. 18). As a result of the accident, Plaintiff claims serious injuries as defined in § 5102 (d) of the Insurance Law. Subsequently on August 25, 2022, Plaintiff initiated the underlying action, claiming entitlement to damages due to the negligence of the driver of Defendant's vehicle in the accident (see NYSCEF Doc No. 1). On May 19, 2023, Defendant's attorney sent a letter to the court, informing it of the passing of Defendant on September 7, 2022, and requesting a stay on the matter until an administrator could be appointed (see NYSCEF Doc No. 20).

On February 5, 2026, Plaintiff filed a notice of motion, seeking to restore the underlying action to active status, to vacate the stay in effect as the result of Defendant's death, to substitute Monique E. Callegari, the wife of the deceased defendant and the administrator of his estate, as representative defendant, to amend the caption to reflect the substitution, and to extend Plaintiff's time to file the note of issue, and to have an additional discovery conference scheduled for the purpose of compelling Defendant to provide all outstanding discovery and depositions (see NYSCEF Doc No. 15).

Movant's Argument

Pursuant to CPLR 1015, Plaintiff contends the court should substitute Monique E. Callegari as administrator of the estate of Edward J. Callegari, the deceased defendant, since she was appointed to that position by the Orangeburg County Probate Court of South Carolina on March 27, 2023 (see NYSCEF Doc No. 21). Plaintiff further avers that the wife of the deceased defendant is united in interest with the estate of deceased defendant.

No objection to the appointment of Monique E. Callegari in place and stead of Defendant has been interposed. Counsel for the insurer of Defendant as the owner of his vehicle has submitted a letter stating that the insurer would represent Monique E. Callegari were she named the defendant in a representative capacity (see NYSCEF Doc No. 30).

Discussion

CPLR 1015 provides:

(a) Generally. If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.

(b) Devolution of rights or liabilities on other parties. Upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate. The death shall be noted on the record and the action shall proceed.

In Lopez v Jackson (230 AD3d 1312, 1313 [2d Dept 2024]), the Court stated as follows:

"In most instances the personal representative of the decedent's estate should be substituted in the action" (Laroche v Laroche, 162 AD3d 1000, 1001 [2018] [internal quotation marks omitted]; see Lambert v Estren, 126 AD3d 942, 943 [2015]). "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" (Lambert v Estren, 126 AD3d at 943; see Dieye v Royal Blue Servs., Inc., 104 AD3d 724, 725 [2013]). 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" (Dieye v Royal Blue Servs., Inc., 104 AD3d at 726; see Laroche v Laroche, 162 AD3d at 1001). "The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court" (Laroche v Laroche, 162 AD3d at 1001; see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25, 28 [1967]).

Here, Plaintiff wishes to continue with his claim against the deceased defendant, but with the substitution of the latter's wife, Monique E. Callegari, as administrator of the estate. The latter, who was appointed "Personal Representative" and "Fiduciary" in Probate Court in Orangeburg County, South Carolina, has not submitted any opposition. Moreover, attorneys assigned by the deceased defendant's insurance carrier will be representing Ms. Callegari in her capacity as the representative of the estate once the substitution has taken place (see NYSCEF Doc No. 30). They do not object to the motion to restore the case to active status, to the substitution, or to extending Plaintiff's time to file the note of issue.

It is noted that, according to court records, no note of issue deadline was ever set. A preliminary conference was never held.

Conclusion

It is hereby ORDERED that Plaintiff's motion herein is granted, and is further ORDERED as follows:

(1) The stay in effect as a result of Defendant's death is vacated.

(2) This matter is restored to active status and the Clerk shall note such in the official records of the court.

(3) Monique E. Callegari, the wife of the deceased defendant, in the assigned capacity of Temporary Administrator of the Estate of Edward J. Callegari for the purpose of defending claims against said estate arising from the subject alleged accident, is substituted as a defendant in place of the deceased defendant.²

(4) The caption in this action is amended to read as follows:

Index No. 524734/2022

SERGIO FERNANDEZ GONZALEZ,

Plaintiff,

against

MONIQUE E. CALLEGARI, as Temporary Administrator of the Estate of E

dward J. Callegari, for the purpose of defending claims against said estate arising from the subject alleged motor vehicle accident of February 21, 2022.

Defendant.

(5) Plaintiff shall file to NYSCEF and serve on the County Clerk a completed form EF-23 within 14 days of entry of this order.

(6) The deadline to file a note of issue in this action is set as May 7, 2027, since this does not appear to be a complex case.

(7) Plaintiff shall contact the Intake Part for the purpose of scheduling a preliminary conference. Alternatively, if the parties wish to do so, they may submit a joint request to this Court to conduct a discovery conference, by filing the joint request on NYSCEF and emailing the law clerks.

FOOTNOTES

1.   Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

2.   The designation assigned is due to no bond having been posted, according to the South Carolina document.

Aaron D. Maslow, J.