Opinion
Index No. 505380/2018
04-26-2023
Bianny Rodriguez, Plaintiff, v. Nicholaos Tsiamis, Defendant.
Unpublished Opinion
Debra Silber, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of plaintiff's motion for an order substituting defendant's estate representative in the caption.
Papers/NYSCEF Doc.
Notice of Motion, Affirmation and Exhibits Annexed 16-24
Affirmation in Opposition and Exhibits Annexed 25
Reply Affirmation
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is a personal injury action which arises from a motor vehicle accident which took place on November 23, 2016, in Queens County, NY. On December 1, 2017, defendant died, according to the death certificate provided at Doc 22. On March 22, 2018, plaintiff commenced this action, and filed an affidavit of service for service on defendant which indicates that a person of suitable age and discretion was served the papers at his residence address on May 8, 2018 [Doc 3]. Apparently, decedent's family member gave the papers to their auto insurance company, and they retained counsel who answered the complaint on May 23, 2018, without communicating with their client, who was deceased. The answer does not assert any jurisdictional affirmative defenses.
At oral argument, counsel for defendant stated that plaintiff's attorney was informed by his office in February 2019 that defendant could not appear for an EBT as he had died. Plaintiff's attorneys then applied to the Surrogate's Court for Letters of Administration so the case could proceed, filing a petition on November 12, 2019, as a creditor of the estate. The plaintiff's attorney also agreed that plaintiff would not seek to recover from the estate, and that any recovery would be limited to the decedent's automobile insurance policy, which is described in the affirmation submitted to the Surrogate's Court. Apparently, after service by publication on some distributees, and after the Pandemic, a member of the decedent's family appeared and agreed to serve. A Decision and Decree was issued on September 14, 2022 by the Queens County Surrogate's Court, and Limited Letters of Administration were issued to Nadia Simanovskaya on that date as well [Doc 23]. This motion followed.
Plaintiff moves to substitute the estate representative, and argues that the deceased defendant's estate has waived its right to object, and cites an unreported case decision from a Supreme Court Justice in another county, provided at NYSCEF Document 28.
A plaintiff is unable to commence an action during the time period between the death of a potential defendant and the appointment of a representative of the estate. Therefore, the action, insofar as asserted against the decedent, should ordinarily be considered a nullity. The fact that the attorney hired by the insurance company to defend the action answered the complaint, purportedly on defendant's behalf, without raising any jurisdictional defense, did not in and of itself confer jurisdiction over decedent's estate (see Arbelaez v Chun Kuei Wu, 18 A.D.3d 583 [2d Dept 2005]). It is black letter law that a suit commenced by serving a deceased person is a nullity. The issue before the court is whether there are circumstances here which permit the court to consider the defendant to be estopped from objecting at this point. There is authority for this proposition (see Matre v Erie County Pub. Adm'r, 283 A.D.2d 1025 [4th Dept 2001]).
While the toll of the statute of limitations on a defendant's death can provide some relief, it does not assist the plaintiff here. The statutory toll runs for eighteen months from the date of death, pursuant to CPLR 210(b). As defendant passed away on December 1, 2017, after eleven months and eight days of the three year statute of limitations had run, the toll extended for eighteen months to May 30, 2019, and then it commenced again, with two years and twenty two days left. Thus, the statute of limitations ran on or about June 21, 2022 (see Glamm v Allen, 57 N.Y.2d 87 [1982]). On that date, there was no estate representative appointed yet. In fact, there is nothing listed in WebSurrogate for the period from 1/29/20 to 2/18/22, presumably because the Surrogate's Court was first closed, then was limited in its operations, due to the Covid-19 Pandemic. The Order for service by publication was issued in February 2022, then the publication took place in July and August of 2022, and a Citation was issued on July 11, 2022, which was returnable on September 8, 2022, with an order to serve it by mail. Thus, the first Citation to the distributees was issued after the statute of limitations had run, even with the toll, due to the Pandemic.
https://websurrogates.nycourts.gov/Home/AuthenticatePage
The court finds that the doctrine of estoppel should be applied here. There are multiple reasons for this conclusion. First, counsel for defendant did not disclose that defendant had died until more than a year after he had died, and then he did so only when plaintiff made a motion for discovery sanctions on April 23, 2019. Second, counsel for defendant did not provide any assistance with locating the defendant's family members so Letters could be issued quickly. The defendant's family did not want the Public Administrator appointed, and seem to have caused some delay with the petition, which sought the appointment of the Public Administrator if nobody in the family stepped up to be appointed. Plaintiff even had to obtain a court subpoena to get a copy of the death certificate for the filing in Surrogate's Court. Third, defendant did not make a motion to dismiss the complaint due to the fact that the summons and complaint were not validly served on defendant because he was already deceased. Counsel has not even made a cross motion to this motion, and merely oppose it [Doc 25] and ask that the case be dismissed by the court without a motion on their part.
The court in Matre v Erie County Pub. Adm'r, 283 A.D.2d 1025, 1026 [4th Dept 2001], states, on very similar facts, that:
"The doctrine of estoppel is applied in certain cases to prevent inequitable reliance upon a defense, such as the Statute of Limitations, which might otherwise be a bar to recovery" (Rosenthal v Reliance Ins. Co., 25 A.D.2d 860, affd 19 N.Y.2d 712; see generally, Simcuski v Saeli, 44 N.Y.2d 442, 448-449; Erbe v Lincoln Rochester Trust Co., 13 A.D.2d 211, 213-214, appeal dismissed 11 N.Y.2d 754). The service of an answer containing an admission that Ziolkowski was alive was both misleading and reasonably relied upon by plaintiff. The attorney representing Ziolkowski, who now represents defendant, not only failed to correct that inaccurate admission but carried the litigation forward as if Ziolkowski were still alive."
In that case, the court found that the trial court "properly applied the doctrine of equitable estoppel to prevent defendant from gaining an unconscionable advantage in the action" (Matre v Erie County Pub. Adm'r, 283 A.D.2d 1025, 1026 [4th Dept 2001], citing Fink v Regent Hotel, 234 A.D.2d 39, 41; Dupuis v Van Natten, 61 A.D.2d 293, 295-296). This reasoning applies here.
In another case, Campbell v Chabot, 189 A.D.2d 746, 747 [2d Dept 1993], the court summarizes the principle as "[w]here a defendant's misrepresentation was intended to forestall a plaintiff from commencing a timely action and the plaintiff justifiably relied upon that misrepresentation, the defendant will be estopped from raising the defense of the Statute of Limitations." Here, had defendant's attorneys returned the summons and complaint and advised plaintiff's counsel that defendant had passed away, plaintiff would have been able to have an estate representative appointed before the statute of limitations had run. Instead, defendant filed and served an answer without any jurisdictional defenses and waited until plaintiff filed a motion to preclude the (deceased) defendant from testifying before informing plaintiff that defendant was deceased. Defendant never moved to dismiss on the grounds of mistake or improper service.
Accordingly, the motion is granted in its entirety. The stay is lifted, and the caption is amended to reflect that the defendant is "Nadia Simanovskaya, as Administrator of the Estate of Nicholaos Tsiamis." The plaintiff's recovery shall be limited to the auto insurance policy limits, as set forth in counsel's affirmation filed with the Surrogate's Court. This matter shall appear on the Compliance Conference Part calendar on June 26, 2023. Counsel should ascertain if appearances are required by referring to the Part's Rules posted on the court's website when it is closer in time to the appearance date.
This constitutes the decision and order of the court.