| New Hampshire Ins. Co. v Bartha |
| 2008 NY Slip Op 04281 [51 AD3d 480] |
| May 8, 2008 |
| Appellate Division, First Department |
| New Hampshire Insurance Company, as Subrogee of Links Club,Inc., Respondent, v Maria Serena Bartha et al., Appellants, et al.,Defendants. |
—[*1] Clausen Miller, P.C., New York (Robert A. Stern of counsel), for respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered September 19,2007, which, to the extent appealed from, denied the individual defendants' motion to dismiss thecomplaint as against them for failure to state a cause of action, imposed costs upon their counsel,and granted plaintiff's cross motion for leave to amend the complaint to add certain allegationsagainst the individual defendants, unanimously reversed, on the law, with costs, defendants'motion granted, the imposition of costs vacated, and plaintiff's cross motion denied.
In the matrimonial action brought by defendant Cordula Bartha against her then-husband, thedecedent herein, this Court held, inter alia, that a certain townhouse constituted marital propertyand that therefore Cordula was entitled to share in its value (see Bartha v Bartha, 15 AD3d 111, 115-117 [2005]). On or aboutJuly 10, 2006, the decedent, unwilling to accept that the townhouse was marital property, set offan explosion on the premises that destroyed the building and caused fatal injuries to himself.There followed numerous lawsuits against the decedent's estate by individuals and entitiesseeking damages for injury to persons or property due to the decedent's wrongful conduct inblowing up the house. Plaintiff New Hampshire Insurance Company commenced the instantaction on behalf of its insured, the Links Club, not only as against the estate but also as againstCordula Bartha and the couple's two daughters, one of whom had been appointed administratorof the estate, in their individual capacities.
Irrespective of any viable claims that plaintiff might have against either the decedent's estateor defendant Consolidated Edison arising out of the decedent's conduct in destroying hisproperty, it has none as against any of the individual defendants. Cordula Bartha had beendivorced from the decedent for several years, and neither she nor the couple's two daughters hadresided with him since October 2001. None of them had either authority to control the decedent'sactions (see Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988]) or arelationship with the Links Club that required them to protect it [*2]from the conduct of others (see Hamilton v Beretta U.S.A.Corp., 96 NY2d 222, 233 [2001]). Contrary to plaintiff's contention, the decision in thematrimonial action, while it had the effect of making Cordula an owner of the townhouse, did notrender her liable for the decedent's conduct. Indeed, her position was akin to that of anout-of-possession judgment creditor who neither maintained nor controlled the premises wherean injury-causing event occurred (seeMoran v Regency Sav. Bank, F.S.B., 20 AD3d 305, 306 [2005]).
In the absence of a viable cause of action against the individual defendants, plaintiff shouldnot have been afforded leave to amend its complaint (see Wieder v Skala, 168 AD2d 355[1990]).
In the circumstances presented, particularly as the record discloses no noncompliance withany judicial directive, the imposition of costs upon defendants' counsel was improper.Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.