| Dieye v Royal Blue Servs., Inc. |
| 2013 NY Slip Op 01527 [104 AD3d 724] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Youssoufa Dieye, Respondent, v Royal BlueServices, Inc., et al., Appellants. |
—[*1] Eric H. Green, New York, N.Y. (Marc Gertler and Ryan J. Lawlor of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Schack, J.), dated March 5, 2012, as granted those branches of the plaintiff's motionwhich were, in effect, pursuant to CPLR 1015 (a) for leave to appoint Kimberly von Arxas the temporary administrator of the estate of Edward S. Cleghorn, to substitute her forEdward S. Cleghorn as a defendant, to amend the caption accordingly, and to lift the stayresulting from the death of Edward S. Cleghorn.
Ordered that the order is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, those branches of the plaintiff's motion which were, ineffect, pursuant to CPLR 1015 (a) for leave to appoint Kimberly von Arx as thetemporary representative of the estate of Edward S. Cleghorn, to substitute her forEdward S. Cleghorn as a defendant, to amend the caption accordingly, and to lift the stayresulting from the death of Edward S. Cleghorn are denied, and the matter is remitted tothe Supreme Court, Kings County, for further proceedings consistent herewith.
"If a party dies and the claim for or against him [or her] is not thereby extinguishedthe court shall order substitution of the proper parties" (CPLR 1015 [a]). "A motion forsubstitution may be made by the successors or representatives of a party or by any party"(CPLR 1021).
"In most instances the personal representative of the decedent's estate should besubstituted in the action" (3-1015 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶1015.06). However, in the event no such representative exists, an appropriateappointment should be made and that individual should be substituted in place of thedecedent (see Grillo v Tese, 113 AD2d 871, 873 [1985]; see also Matter ofSt. Luke's-Roosevelt Hosp. Ctr., 261 AD2d 320, 320-321 [1999]). "In determiningwho shall be substituted for the decedent, conflict of interest questions may be raised"(3-1015 [*2]Weinstein-Korn-Miller, NY Civ Prac CPLR¶ 1015.06).
Here, the defendant Edward S. Cleghorn died in Jamaica, West Indies, on March 30,2010, approximately one year after the commencement of this action to recover damagesfor personal injuries. In November 2011, the plaintiff moved, in effect, pursuant toCPLR 1015 (a) to appoint Kimberly von Arx as the temporary administrator ofCleghorn's estate in order to lift the stay arising from Cleghorn's death and allow theaction to proceed. In his moving papers, the plaintiff agreed to limit the amount ofrecovery sought against the estate to the limits of any insurance coverage available toCleghorn. The defendants opposed the motion, contending that the Surrogate's Court wasthe more appropriate forum for the appointment of a temporary administrator. Thedefendants also argued that the proposed temporary administrator, an attorney retained bytheir insurance company to defend them in this action, would be operating under aconflict of interest because the insurance company had disclaimed coverage for thesubject accident. The Supreme Court granted the plaintiff's motion, and appointed vonArx temporary administrator of Cleghorn's estate.
Contrary to the defendants' contention, the Supreme Court did not err in exercisingits authority to appoint a temporary administrator for Cleghorn's estate instead ofrequiring the plaintiff to proceed in Surrogate's Court. The Supreme Court is a court ofgeneral jurisdiction with the power to appoint a temporary administrator, and may do soto avoid delay and prejudice in a pending action (see Harding v Noble TaxiCorp., 155 AD2d 265, 266 [1989]; see also Grillo v Tese, 113 AD2d at 873).Here, in view of the plaintiff's agreement to limit the amount of recovery sought to thelimits of any insurance coverage available to Cleghorn, his estate will not be adverselyaffected by the continuation of this action. Under these circumstances, there was nospecial need for the plaintiff to proceed in Surrogate's Court, and the Supreme Courtproperly exercised its authority to appoint a temporary administrator to avoid delay(see Harding v Noble Taxi Corp., 155 AD2d at 266).
However, the Supreme Court improperly selected von Arx to be the temporaryadministrator of Cleghorn's estate. In view of the fact that von Arx was retained by thedefendants' insurance company, and that the insurance company has disclaimed coveragefor the subject accident, she would be subject to divided loyalties (see Prashker vUnited States Guar. Co., 1 NY2d 584, 593 [1956]; Gorman v Pattengell, 145AD2d 411, 412 [1988]; Utica Mut. Ins. Co. v Cherry, 45 AD2d 350, 354-355[1974], affd 38 NY2d 735 [1975]). Accordingly, we remit the matter to theSupreme Court, Kings County, for the appointment of an appropriate individual to serveas the temporary administrator of Cleghorn's estate (see Grillo v Tese, 113 AD2dat 873). Angiolillo, J.P., Sgroi, Cohen and Miller, JJ., concur.