Opinion
INDEX NO. 452133/2016
07-13-2022
Victoria BRIGHTMAN, Plaintiff, v. CORIZON, INC., Corizon Health, Inc., Correctional Medical Associates of New York, PC, Jean Richard, and Donald Doherty, Defendants.
Law Office of Sandra D. Parker, New York, NY (Sandra D. Parker of counsel), for plaintiff. Saiber, LLC, New York, NY (Jennine DiSomma, Jakob B. Halpern, and Vincent C. Cirilli of counsel), for defendants.
Law Office of Sandra D. Parker, New York, NY (Sandra D. Parker of counsel), for plaintiff.
Saiber, LLC, New York, NY (Jennine DiSomma, Jakob B. Halpern, and Vincent C. Cirilli of counsel), for defendants.
Gerald Lebovits, J. The current motions in this employment-discrimination action present another example of the procedural complexities that can arise when a party to litigation dies without the knowledge of the court or counsel.
Plaintiff, Victoria Brightman, passed away in May 2021. Months after her death, her counsel moved for leave to withdraw; and defendants moved to dismiss the action for plaintiff's failure to pursue the action. But given plaintiff's death this court lacks the authority to decide defendants’ motion to dismiss; and may well also lack authority to decide plaintiff's counsel's motion to withdraw.
This court recognizes, though, that plaintiff's son, Peter Brightman, told plaintiff's counsel, when informing counsel of plaintiff's death, that he did not intend to pursue this action. The court therefore directs Mr. Brightman to show cause why his mother's action should not be dismissed. In other words, Mr. Brightman must provide reasons why the court should let the action continue while he obtains the authority as a representative of his mother's estate to pursue the action on her behalf.
Mr. Brightman may provide these reasons by email or letter to the court, as described at the end of this decision.
If Mr. Brightman does not provide a response by the end of September 2022, explaining why the action should be permitted to continue, the court will then enter an order dismissing the action under CPLR 1021. If Mr. Brightman does provide a response, the court will then consider how best to proceed.
BACKGROUND
The circumstances leading to this decision began in late 2020. Significant disagreements between the parties had arisen during the course of discovery, particularly with respect to the conduct of plaintiff's deposition. Defendants moved at the end of 2020 to compel plaintiff to appear for a further deposition and to provide supplemental written discovery. (See NYSCEF No. 42 [notice of motion].) That motion (mot seq 002) was fully briefed as of mid-February 2021. In May 2021, plaintiff died. (See NYSCEF No. 99 [letter from plaintiff's counsel to the court].) But neither party's counsel, nor this court, was aware at that time of plaintiff's death.
Acting without knowledge of plaintiff's death, this court granted defendants’ motion to compel, and directed plaintiff to appear for a further deposition and to provide additional written discovery. (See Brightman v. Corizon, Inc. , 2021 N.Y. Slip Op. 50735[U], at *6, 2021 WL 3236417 [Sup. Ct., N.Y. County July 29, 2021].) Over the summer and early fall of 2021, plaintiff's counsel obtained extensions of the deadlines to satisfy these discovery obligations, explaining that she had encountered difficulty in contacting her client. (See NYSCEF No. 79 [so-ordered stipulation]; see also NYSCEF No. 81 [letter to court from counsel].)
At a discovery conference in November 2021, plaintiff's counsel informed the court that she was still unable to reach her client. The court therefore directed defendants to serve a 90-day non-prosecution notice on both plaintiff and her counsel under CPLR 3216 (b) (3), which would permit defendants in the absence of a proper response to move to dismiss. (See NYSCEF No. 90 [so-ordered stipulation].) Defendants served the 90-day notice on November 5, 2021. (See NYSCEF No. 102 at ¶¶ 19-23 [affirmation of counsel].)
Plaintiff did not respond to the 90-day notice. In January 2022, plaintiff's counsel moved for leave to withdraw as counsel (mot seq 003), citing her continued inability to reach her client. (See NYSCEF No. 93 [order to show cause]; NYSCEF No. 92 at ¶¶ 9-14 [affirmation of counsel].) On February 8, 2022, before the motion to withdraw was fully submitted, plaintiff's counsel wrote to the court, indicating that she had received a telephone call that day from plaintiff's son, and that he had told her that plaintiff had died in May 2021. (See NYSCEF No. 99.) Plaintiff's counsel also exchanged emails that day with defendants’ counsel. (See NYSCEF No. 118.) In that email exchange, she told defendants’ counsel that plaintiff's son said that "no further action was going to be taken with the case"; but that he had "not state[d] whether an estate had been opened." (Id. at 1.)
The next day, February 9, 2022, defendants moved to dismiss the complaint for want of prosecution under CPLR 3216 (mot seq 004). (See NYSCEF No. 100.) Motion sequences 003 and 004 are now fully briefed and pending before this court. DISCUSSION
The "death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made" under CPLR 1015, such that "any order rendered after the death of a party and before the substitution of a legal representative is void." ( Griffin v. Manning , 36 A.D.3d 530, 532, 828 N.Y.S.2d 372 [1st Dept. 2007].) In other words, this action was automatically stayed at the time of plaintiff's death in May 2021—although neither counsel nor this court were aware of that fact. This court therefore lacks jurisdiction to decide defendants’ motion to dismiss the action for want of prosecution. For that matter, as discussed further below, this court is unsure it has jurisdiction even to decide plaintiff's counsel's pending motion for leave to withdraw as counsel.
This court is skeptical in any event of the merits of defendants’ argument for dismissal based on non-prosecution. Given the automatic stay, no failure to prosecute occurred between May 2021 and November 2021, beyond the lack of substitution of an appropriate estate representative under CPLR 1015. For that matter, defendants’ 90-day notice was likely ineffective in any event. Similarly, dismissal is not warranted as a discovery sanction under CPLR 3126 for plaintiff's failure to comply with this court's July 2021 discovery order, as defendants suggest. (See NYSCEF No. 101 at 9-11.) That order was void for lack of subject-matter jurisdiction.
The court could conceivably deem defendants’ motion to be a request to dismiss under CPLR 1021 for failure to timely substitute in an estate representative, and grant it on that basis. In the circumstances of the case, though, the court concludes that it would be inappropriate to take this step—even given Mr. Brightman's statement to plaintiff's counsel in February 2022 that he does not wish to pursue the action. (See Petty v. Meadowbrook Distrib. Corp. , 266 A.D.2d 88, 88, 698 N.Y.S.2d 659 [1st Dept. 1999] [vacating dismissal under CPLR 1021 as abuse of discretion].)
The procedures of CPLR 1021 constitute a limited exception to the principle that the death of a party divests the court of jurisdiction pending substitution of an appropriate estate representative. (See Hyman v. Booth Mem. Hosp. , 306 A.D.2d 438, 438, 761 N.Y.S.2d 306 [2d Dept. 2003].)
The proper way to take account of Mr. Brightman's statement is instead to order him "to show cause why the action ... should not be dismissed." ( CPLR 1021.) This court, exercising its discretion under CPLR 1021 to direct appropriate notice, concludes that this show-cause order must be served on Mr. Brightman at his last-known address by certified mail, return receipt requested. If Mr. Brightman does not respond by September 30, 2022, providing reasons why the action should continue, this court will, on the written request of defendants, enter an order dismissing the action. If Mr. Brightman does respond by September 30, 2022, the court will consider at that point what the appropriate course of action should be, taking into account defendants’ views.
With respect to whether this court may entertain and decide plaintiff's counsel's motion for leave to withdraw, the court's research has not found any appellate authority addressing this unusual question. The cases do reflect that the death of a party severs the attorney-client relationship between that party and her attorney for purposes such as determining when a malpractice claim accrues. (See Davis v. Cohen & Gresser, LLP , 160 A.D.3d 484, 485, 74 N.Y.S.3d 534 [1st Dept. 2018].) But that issue is distinct from whether the court has jurisdiction to enter an order reflecting that severance for purposes of CPLR 321 (b) (2).
To be sure, there are obvious practical reasons why a court should grant a withdrawal motion brought by an attorney who moved prior to learning of the death of her client, at least absent prejudice. (Cf. Daly 180 Housing Dev. Fund Corp. v. Williamson , 68 Misc. 3d 1031, 1037, 130 N.Y.S.3d 232 [Civ. Ct., Bronx County 2020] [granting counsel's oral on-the-record motion to withdraw due to the death of counsel's client, on the court's finding that no prejudice would result].) This court declines, however, to wade into these murky waters at this time, given the show-cause order it is issuing to Mr. Brightman. Should Mr. Brightman respond to the show-cause order, plaintiff's counsel may then raise again the issue of counsel's withdrawal.
Accordingly, for the foregoing reasons, it is
ORDERED that Peter Brightman, plaintiff's son, is directed under CPLR 1021 to show cause by September 30, 2022, why plaintiff's action should not be dismissed; any response by Mr. Brightman may be sent by letter to Part 7 Clerk, 60 Centre Street, Rm. 345, NY, NY 10007, or by email to SFC-Part7-Clerk@nycourts.gov; and it is further
ORDERED that defendants shall within 5 days of entry of this order serve a copy of this order on Peter Brightman at his last-known address by certified mail, return receipt requested.