Opinion
Index No. 158629/2013 Motion Seq. No. 003
10-04-2023
GLENDA STRONG, Plaintiff, v. TERENCE CARDINAL COOKE HEALTH CARE CENTER, Defendant.
Unpublished Opinion
MOTION DATE 06/29/2023
PRESENT: HON. JOHN J. KELLEY, JUSTICE
DECISION + ORDER ON MOTION
JOHN J. KELLEY, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 61, 62 DISMISS/X-MOTION TO AMEND COMPLAINT AND were read on this motion to/for SUBSTITUTE FOR PLAINTIFF.
In this action to recover damages for medical malpractice, the defendant moves pursuant to CPLR 1021 to dissolve the stay imposed by operation of law upon the plaintiff's death, and thereupon to dismiss the complaint insofar as asserted against it on the ground that no timely motion was made to substitute a representative of the deceased plaintiff's estate as the plaintiff in this action. The law firm that previously represented the decedent (former counsel) opposes the motion, and cross-moves pursuant to CPLR 1021, 1015 and 3025 for leave to amend the complaint to substitute the Public Administrator of the County of New York as the plaintiff herein. The defendant opposes the cross motion. The defendant's motion is granted only to the extent that the stay is dissolved, its motion is otherwise denied, the cross motion is granted, and the caption is amended accordingly.
The decedent commenced this action on September 20, 2013. She died on August 30, 2014. Upon the petition of the managing agent of the apartment building in which the decedent had resided, the Surrogate's Court, New York County, appointed the Public Administrator of the County of New York as the administrator of the decedent's estate on September 15, 2015. The Surrogate's Court made the appointment in connection with a landlord-tenant proceeding that the landlord of the building had commenced in the Civil Court, New York County, but apparently it was unaware of the pendency of the instant action. Neither former counsel nor the attorney for the defendant in this action were informed of the Surrogate's Court appointment at that juncture. On July 25, 2016, and again on August 29, 2016, the defendant moved to dismiss the complaint in this action for the failure timely to substitute an appropriate representative of the decedent's estate as the party plaintiff. The defendant, however, withdrew both motions, apparently because it had yet to obtain a copy the plaintiff's death certificate and submit it to the court. On December 9, 2016, the defendants wrote to the court (Lobis, J.) and provided it with a copy of the death certificate, but took no further steps in connection with this action until June 1, 2023, despite the fact that this court, in an interim order dated October 12, 2022, memorialized the automatic stay in this action imposed by operation of law upon the decedent's death.
On or about September 29, 2017, former counsel and the Public Administrator's attorney discussed whether to substitute the Public Administrator as the plaintiff in this action. The Public Administrator tendered a proposed retainer agreement to former counsel. On August 17, 2018, the Public Administrator's attorney wrote to former counsel to recount their prior transactions, and explained that, inasmuch as former counsel declined to countersign the proposed retainer agreement due to a disagreement over fees, the Public Administrator would not retain former counsel to represent him on behalf of the decedent's estate in the instant action. The Public Administrator further advised former counsel that, unless it were retained, former counsel would have no authority to litigate this action on behalf of the estate.
In a letter dated December 12, 2018, former counsel advised the Public Administrator that it had ceased work on this medical malpractice action, but notified the Public Administrator that it had spoken with Ms. Shawn McClurkin, who informed former counsel that the Public Administrator's office had agreed to permit her or her brother, Lavell McClurkin, to replace the Public Administrator as administrator of the decedent's estate for the purpose of substitution as the plaintiff in this action. Former counsel requested the Public Administrator to confirm that information and consent to the substitution, which he apparently did.
According to former counsel, on or about January 24, 2019, it contacted the Surrogate's Court to determine what was required to remove the Public Administrator as the administrator of the decedent's estate in order to replace him with an appropriate person, and was advised that a "Petition for Removal and Replacement" was required to remove the Public Administrator. On or about February 4, 2019, an employee of former counsel's office attempted to file a Petition for Removal and Replacement with the clerk of the Surrogate's Court. The clerk's office advised the employee that, if Barbara Strong---who was the decedent's closest relative---was unable to be appointed as successor administrator, only Shawn McLurkin, but not Lavell McLurkin, would be qualified to be appointed as the administrator. Former counsel thus redrafted the petition to name Shawn McLurkin as the proposed administrator. Between February 2019 and June of 2019, former counsel obtained waivers of citation from Barbara Strong and all relevant members of the McLurkin family. When former counsel attempted to file the redrafted petition with the clerk of the Surrogate's Court on June 5, 2019, the clerk refused to accept the petition for filing since Wendell Strong, Glenda Strong's brother, was alive but not identified in the petition, thus necessitating a further redraft. Shawn McLurkin ultimately was able to obtain a waiver from Wendell Strong on or about July 24, 2019.
Shortly thereafter, a new attorney at former counsel's firm was assigned to process the filing of the redrafted petition. Although the Public Administrator's attorney told that new attorney that the petition needed to be countersigned by the Public Administrator, and the former counsel needed to submit a "Petition for Letters D.B.N. (de bonis non)" to replace the Public Administrator, the clerk of the Surrogate's Court insisted that a Petition for Waiver and Renunciation was the appropriate document. Former counsel prepared a Petition for Waiver and Renunciation, and presented it to the Public Administrator's attorney, but, according to former counsel, over the next several months there was an ongoing turnover of attorneys handling the case at the Public Administrator's attorney's office, so that the petiion was not fully reviewed until December 2020. During that month, the Public Administrator's attorney advised former counsel that the Public Administrator could not "resign" as administrator unless a relative of the decedent's who was closer than a cousin signed the waiver of citation and consented to the petition. Inasmuch as the decedent's brother Wendell was still alive, he was qualified to sign, but allegedly remained difficult to contact. After Shawn McLurkin ultimately was able to contact Wendell, former counsel made modifications to the proposed petition, and, on or about March 17, 2022, former counsel forwarded it to the Public Administrator's attorney for review. On March 24, 2022, the Public Administrator's attorney responded to former counsel, asserting that the Public Administrator could not "voluntarily resign" as the administrator of the estate but, rather, that a "Petition for Revocation" would need to be submitted to the Surrogate's Court in addition to any other required petition. The Public Administrator's attorney, however, affirmed that the Public Administrator would not object to the petition or submit any opposition thereto. A few months later, yet another new attorney at the former counsel's firm took over the case file from the attorney who had been working on it, who had left the firm. The new attorney averred that it took several months to obtain properly notarized waivers of citation from the decedent's distributees in connection with the Petition for Revocation. In late August or early September, 2022, former counsel retained estate attorney Carol Stone, Esq., to handle all issues with the Surrogate's Court, and, on September 29, 2022, forwarded her the papers related to the decedent's estate Sadly, Stone died on September 30, 2022. Former counsel nonetheless filed the Petition for Revocation with the clerk of the Surrogate's court on June 8, 2023.
On June 13, 2023, the defendant made the instant motion to dismiss the complaint (see CPLR 2211) and served the initiatory order to show cause and supporting papers upon the decedent's former counsel, the Public Administrator, and a person deemed to have been the decedent's close friend. Former counsel opposed the motion, and cross-moved to substitute the Public Administrator for the decedent in this action, in anticipation of substituting Shawn McLurkin for the Public Administrator as the representative of the decedent's estate, and thereafter ultimately substituting her for the Public Administrator as the plaintiff in this action. Former counsel submitted an affirmation of merit from a physician, Surrogate's Court filings, the correspondence between the Public Administrator's attorney and former counsel, and an attorney's affirmation describing the procedural history of the Surrogate's Court matter.
"If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015[a]). The determination of whether to permit substitution is addressed to the sound discretion of the court (see Rosenfeld v Hotel Corp. of Am., 20 N.Y.2d 25, 28 [1967]). CPLR 1021 provides, in relevant part, that
"A motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant. If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate."
The issue of what constitutes a reasonable time depends on the circumstances of the case (see Randall v Two Bridges Assoc. Ltd. Partnership, 139 A.D.3d 435 [1st Dept 2016]), including the diligence of the party who will ultimately seek substitution, the prejudice to the other parties, and whether the party who eventually will be substituted has shown that the action has potential merit (see Green v Maimonides Med. Ctr., 172 A.D.3d 824, 826 [2d Dept 2019]). "'Even if the explanation for the delay is not satisfactory, the court may still grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action, in light of the strong public policy in favor of disposing of matters on the merits'" (Tollinchi v Jamaica Hosp. Med. Ctr., 216 A.D.3d 842, 844-845 [2d Dept 2023], quoting Navas v New York Hosp. Med. Ctr. of Queens, 180 A.D.3d 796, 797-798 [2d Dept 2020]).
While the defendant made the instant motion nine years after the decedent's death, and a representative of the decedent's estate has yet to be substituted, former counsel began to make attempts to substitute the Public Administrator as the plaintiff in this action a little more than three years after the decedent's death, and only a short time after it learned that the Public Administrator had already been appointed as the administrator of the decedent's estate (see Dugger v Conrad, 189 A.D.3d 478, 479-480 [1st Dept 2020] [where defendant waited only 16 months before moving to dismiss, and counsel for deceased plaintiff was attempting to have the Public Administrator substituted as plaintiff, request for dismissal was premature]; Tokar v Weissberg, 163 A.D.3d 1031, 1032-1033 [2d Dept 2018] [lapse of 21/2 years between decedent's death and defendant's motion to dismiss under CPLR 1021 is insufficient to support defendant's contention that substitution had not been made within a reasonable time, particularly where the case revolved around medical records already in defendant's possession]).
Former counsel satisfactorily explained the reasons for the delays in seeking to substitute the Public Administrator as the plaintiff in this action, arising from the Public Administrator's hesitation in permitting former counsel in proceeding on its behalf, the difficulties presented by the filing requirements set forth in the SCPA, and as directed by the clerk of the Surrogate's Court, the changing instructions given by the Public Administrator's attorney, the frequent turnover of attorneys in both the offices of former counsel and the Public Administrator's attorney, the difficulties and delays in contacting the decedent's distributees and obtaining appropriately executed waivers of citation from them, and the death of an estate law specialist retain expressly to assist former counsel with Surrogate's Court matters. Further, former counsel has established the potential merit of the decedent's claim by submitting a physician's affidavit of merit. The defendant has not shown that it would be prejudiced by the substitution despite the long lapse of time between the decedent's death and the present, inasmuch as it waited an additional seven years after its first two unsuccessful motions before making the instant motion, it learned that the Public Administrator had been appointed as estate administrator approximately three years after the decedent's death, and a significant portion of the evidence relevant to the decedent's claim is in the form of medical records generated between December 1, 2012, and September 15, 2013.
Moreover, the defendant's motion must be denied because it did not provide notice "to those interested in decedent's estate to show cause why dismissal should not be granted" (Weber v Bellinger, 124 A.D.2d 1009, 1009 [4th Dept 1986]), as required by CPLR 1021. Rather, the defendant only served the order to show cause upon former counsel, which was, upon the decedent's death, no longer counsel for the decedent or her distributees by operation of law (see Homemakers, Inc. of Long Is. v Williams, 131 A.D.2d 636, 638 [2d Dept 1987]; Hemphill v Rock, 87 A.D.2d 836, 836 [2d Dept 1982]; Wisdom v Wisdom, 111 A.D.2d 13, 15 [1st Dept 1985]), the Public Administrator, and, as directed by the court, a close friend of the decedent's who had made funeral arrangements for her. The defendant did not provide notice to Wendell Strong, Barbara Strong, Shawn McLurkin, or Lavell McLurkin, all of whom have, or are likely to have, an interest in the decedent's estate and the outcome of the instant action. As the Appellate Division, First Department, explained in denying a defendant's CPLR 1021 motion to dismiss a complaint under circumstances remarkably similar to those presented in this action, "[t]here never was any order to show such cause in this instance" providing notice to those most directly interested in the decedent's estate, "[n]or was there any showing of willful or contumacious delay on the part of plaintiff's counsel. Furthermore, the defense never demonstrated prejudice by reason of the procedural delay caused by the Public Administrator" (Petty v Meadowbrook Distribution Corp., 266 A.D.2d 88, 88 [1st Dept 1999]).
Accordingly, it is
ORDERED that the defendant's motion is granted only to the extent that the stay imposed by operation of law upon the death of Glenda Strong on August 30, 2014, as memorialized in the interim order of this court dated October 12, 2022 be, and hereby is, vacated and dissolved, and its motion is otherwise denied; and it is further, ORDERED that the cross motion to amend the complaint to substitute the Public Administrator of the County of New York, as administrator of the estate of Glenda Strong, as the plaintiff in this action, in place and instead of the deceased plaintiff, Glenda Strong, is granted, the Public Administrator of the County of New York is substituted as the plaintiff, and the caption of the action is amended to read as follows:
and it is further, ORDERED that, on the court's own motion, within 15 days of the entry of this order, the plaintiff is directed to serve a copy of this order upon the Trial Support Office (60 Centre Street, Room 148, New York, NY 10007), and shall separately file and upload the notice required by CPLR 8019(c) in a completed Form EF-22, and the Trial Support Office shall thereupon amend the court records accordingly.
This constitutes the Decision and Order of the court.