| Lambert v Estren |
| 2015 NY Slip Op 02454 [126 AD3d 942] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Jennifer Lambert, Appellant, v Ralph J. Estrenet al., Respondents. |
The Frankel Law Firm, New York, N.Y. (Richard H. Bliss, Michael Stewart Frankel,and Reuven S. Frankel of counsel), for appellant.
Chesney & Nicholas, LLP, Syosset, N.Y. (Stephen V. Morello of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Battaglia, J.), dated April 3, 2014, whichdenied her motion pursuant to CPLR 1015 (a) to appoint a temporary administrator of theestate of Ralph J. Estren, to substitute the temporary administrator for Ralph J. Estren asa defendant, and to lift the stay resulting from the death of the defendant Ralph J.Estren.
Ordered that the order is affirmed, with costs.
The infant plaintiff, by her mother, commenced this action to recover damagesallegedly resulting from exposure to a hazardous lead-based paint condition in a dwellingowned by the defendants. Less than one year after this action was commenced, theplaintiff's attorney was notified that the defendant Ralph J. Estren had died in Florida.The plaintiff subsequently moved pursuant to CPLR 1015 (a), inter alia, to appoint atemporary administrator of the estate of Ralph J. Estren for the limited purpose ofdefending this action. The Supreme Court denied the plaintiff's motion.
"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]; see Dieye v Royal Blue Servs.,Inc., 104 AD3d 724, 725 [2013]). "A motion for substitution may be made bythe successors or representatives of a party or by any party" (CPLR 1021; see Dieye vRoyal Blue Servs., Inc., 104 AD3d at 725). "Generally, the death of a party divests acourt of jurisdiction to act, and automatically stays proceedings in the action pending thesubstitution of a personal representative for the decedent" (Neuman v Neumann, 85 AD3d1138, 1139 [2011]; seeMatter of Vita V. [Cara B.], 100 AD3d 913, 914 [2012]).
In most instances a personal representative appointed by the Surrogate's Court shouldbe substituted in the action to represent the decedent's estate (see Dieye v Royal BlueServs., Inc., 104 AD3d at 725; see also 3-1015 Weinstein-Korn-Miller, NYCiv Prac CPLR ¶ 1015.06). However, in the event no such representative exists, anappropriate appointment may be made by [*2]theSupreme Court and that individual may be substituted in place of the decedent (seeDieye v Royal Blue Servs., Inc., 104 AD3d at 725; Grillo v Tese, 113 AD2d871, 873 [1985]; see also Matter of St. Luke's-Roosevelt Hosp. Ctr., 261 AD2d320, 320-321 [1999]). Indeed, "[t]he Supreme Court is a court of general jurisdictionwith the power to appoint a temporary administrator, and may do so to avoid delay andprejudice in a pending action" (Dieye v Royal Blue Servs., Inc., 104 AD3d at726; see Harding v Noble Taxi Corp., 155 AD2d 265, 266 [1989]; see alsoGrillo v Tese, 113 AD2d at 873). The determination of whether to exercise itsauthority to appoint a temporary administrator is committed to the sound discretion of theSupreme Court, and will not be disturbed by this Court so long as the determination doesnot constitute an improvident exercise of discretion (see Rosenfeld v Hotel Corp. ofAm., 20 NY2d 25, 28 [1967]; Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803, 804[2009]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in denying the plaintiff's motion, inter alia, to appoint a temporaryadministrator (see CPLR 1015 [a]; see generally Rosenfeld v Hotel Corp. ofAm., 20 NY2d at 28; Meczkowski v E.W. Howell Co., Inc., 63 AD3d at804). Although in most instances the personal representative of the decedent's estateshould be substituted, here, the plaintiff failed to demonstrate what steps she had taken tosecure the appointment of a personal representative in the appropriate Surrogate's Courtor that resort to the appropriate Surrogate's Court was otherwise unfeasible (cf. Dieye v Royal Blue Servs.,Inc., 104 AD3d 724 [2013]). Furthermore, the plaintiff did not contend that thisaction, which is based on events occurring nearly 20 years ago, was trial-ready (cf.Harding v Noble Taxi Corp., 155 AD2d 265 [1989]). Under the circumstancespresented here, the plaintiff failed to adequately demonstrate why the appointment of atemporary administrator was needed to avoid undue delay and prejudice. Balkin, J.P.,Hall, Miller and Duffy, JJ., concur.