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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to respond to the ninety-day CPLR 3216 demand to file a note of issue required dismissal of the medical malpractice action. The law-office-failure excuse was vague and conclusory and plaintiff did not demonstrate a meritorious cause of action:

“Where, as here, a plaintiff has been served with a 90-day demand . . . pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period” … . Here, the plaintiff did neither.

“In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates ‘a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action'” … . “‘Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue'” … . Here, the vague and conclusory claim of law office failure set forth by the plaintiff’s attorney did not constitute a justifiable excuse … . Moreover, the plaintiff failed to submit evidentiary proof from a medical expert demonstrating the existence of a potentially meritorious cause of action … . Kresberg v Kerr, 2025 NY Slip Op 03559, Second Dept 6-11-25

Practice Point: Here a vague and conclusory allegation of law-office-failure was not a reasonable excuse for failure to respond to the ninety-day demand to file a note of issue.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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THE 90-DAY TIME-LIMIT FOR FILING AND SERVING A NOTICE OF CLAIM AGAINST THE CITY FOR WRONGFUL DEATH RUNS FROM THE APPOINTMENT OF AN ADMINISTRATOR; HERE THE NOTICE OF CLAIM WAS TIMELY FOR THE WRONGFUL DEATH CAUSE OF ACTION; HOWEVER THE 90-DAY TIME-LIMIT FOR THE CAUSES OF ACTION FOR CONSCIOUS PAIN AND SUFFERING AND PREIMPACT TERROR RUNS FROM THE DATE OF THE ACCIDENT; THE NOTICE OF CLAIM SHOULD HAVE BEEN REJECTED AS UNTIMELY FOR THOSE TWO CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application to deem a notice of claim timely served for the conscious pain and suffering and preimpact terror causes of action in this pedestrian-bus-accident wrongful-death case should not have been granted. General Municipal Law 50-e provides that a notice of claim alleging wrongful death is timely filed and served within 90 days of the appointment of an administrator; that requirement was met here. The notice of claim was therefore timely for the wrongful death cause of action. However the wrongful-death notice-of-claim provision in General Municipal Law 50-e does not apply to the conscious pain and suffering and preimpact terror causes of action. The Second Department held that the notice of claim should have been rejected as untimely for those two causes of action:

Here, [defendant] NYCTA [New York City Transit Authority] did not acquire actual knowledge of the essential facts constituting the claims of conscious pain and suffering or preimpact terror within a reasonable time after the expiration of the 90-day statutory period … . “As a general rule, knowledge of an accident or occurrence by a municipality’s police or fire department cannot be imputed to another public or municipal corporation” … . Furthermore, the case file did not indicate that anyone associated with NYCTA acquired actual knowledge of essential facts constituting the subject claims.

As to the other relevant factors, the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve a notice of claim … . The petitioner also failed to meet her initial burden of presenting “some evidence or plausible argument” … to support a finding that NYCTA will not be substantially prejudiced by the approximate six-month delay from the expiration of the 90-day statutory period until the commencement of this proceeding … . Matter of Egalite v New York City Tr. Auth., 2025 NY Slip Op 02773, Second Dept 5-7-25

Practice Point: A notice of claim for wrongful death is timely filed and served within 90 days of the appointment of an administrator pursuant to General Municipal Law 50-e (a) (1). However, that statutory provision does not apply to causes of action for conscious pain and suffering and preimpact terror. Notices of claim for those causes of action must be filed and served within 90 days of the accident.

 

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THE LAWSUIT BROUGHT BY PLAINTIFF BENEFICIARY AGAINST DEFENDANT TRUSTEE DID NOT CHALLLENGE THE TRUST, BUT RATHER SOUGHT TO ENFORCE THE PROVISIONS OF THE TRUST; THEREFORE THE LAWSUIT DID NOT TRIGGER THE IN TERROREM CLAUSE (WHICH DISPOSSES A BENEFICIARY WHO SEEKS TO NULLIFY THE TRUST); THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, reversing (modifying) Supreme Court, determined the lawsuit brought by plaintiff beneficiary of the estate (Carlson) against the trustee (Colangelo) did not trigger the “in terrorem” clause in the will and the trust. Therefore the provisions of the will and the trust remained enforceable by the plaintiff and the plaintiff was entitled to the real property bequeathed to her. The opinion is fact-specific and cannot be fairly summarized here:

The trust includes an in terrorem clause, which dispossesses a beneficiary or other challenger who contests or seeks to nullify the trust. The issue on this appeal is whether plaintiff triggered the clause when she commenced the underlying action against the trustee and thereby forfeited her bequests. * * *

We conclude that because plaintiff’s lawsuit seeks to enforce the Trust provisions as written and intended by the grantor, plaintiff did not attempt to nullify the Trust or challenge its terms. Thus, plaintiff did not violate the in terrorem clause and defendant is not entitled to summary judgment. We further conclude that plaintiff has established her right to summary judgment on her first cause of action regarding her ownership rights to the Premises and her motion should be granted to that extent. Carlson v Colangelo, 2025 NY Slip Op 02264, CtApp 4-17-25

Practice Point: Consult this opinion for insight into when a lawsuit against a trustee triggers an in terrorem clause in the trust document. Here the majority concluded the lawsuit did not challenge the trust but rather sought to enforce the provisions of the trust. Therefore the in terrorem clause was not triggered.

 

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UNBEKNOWNST TO ALL DURING THE 1992 SURROGATE’S COURT PROCEEDING, THE DECEDENT’S BROTHER WAS STILL ALIVE; DECEDENT’S NEPHEW TOOK POSSESSION OF DECEDENT’S PROPERTY, A THREE-STORY BUILDING, IN 1993; THE NEPHEW FIRST BECAME AWARE OF DECEDENT’S BROTHER’S INTEREST IN THE PROPERTY IN 2019; THE COURT OF APPEALS DETERMINED THE NEPHEW ACQUIRED THE PROPERTY BY ADVERSE POSSESSION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, determined respondent (Mr. Golobe), who “inherited” the building after his aunt (Dorothy) died, was entitled to the building through adverse possession after it became known that Dorothy’s brother, Yale, was still alive. During the Surrogate’s Court proceeding a family friend testified that Yale  predeceased Dorothy by six or seven years:

Mr. Golobe. Mr. Golobe took possession of the Premises in October 1992 and has maintained possession since then. He has negotiated leases, collected and retained rent, paid property taxes, executed a construction mortgage, and made substantial renovations to the Premises. Those renovations include a complete structural support overhaul, an interior gut renovation, the replacement of the front entrance and door, the replacement of the second and third floor windows, and the replacement of the roof.

Yale actually died the year after Dorothy, in 1993. His estate passed to his wife Helen, then to Helen’s sister Beatrice, then to Beatrice’s husband Emil Kraus. Upon Mr. Kraus’s death, his estate passed to the Trust, the defendant-appellant in this case. * * *

The question—whether a cotenant may adversely possess property when neither cotenant is aware of the existence of the co-tenancy—is an issue of first impression in New York. We hold that a cotenant may obtain full ownership of jointly owned property even when neither party is aware of the other cotenant’s interest. Mr. Golobe did so.

“To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)” … . The parties agree that Mr. Golobe actually, exclusively and continuously occupied the Premises for over 20 years, beginning in October 1992. We must determine whether Mr. Golobe’s possession was hostile, under a claim of right, and open and notorious. It was all three. Golobe v Mielnicki, 2025 NY Slip Op 01670, CtApp 3-20-25

Practice Point: In a matter of first impression, the Court of Appeals determined a cotenant may adversely possess property even when neither cotenant is aware of the existence of the co-tenancy.

 

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THE PETITION FOR GUARDIANSHIP OF THE CHILD SHOULD NOT HAVE BEEN DISMISSED BECAUSE PETITIONER IS NOT RELATED TO THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition for guardianship of the child should not have been dismissed on the ground petitioner was not a relative. The applicable provision of the Surrogate’s Court Procedure Act (SCPA 1703) states the petition can be brought by “any person:”

​Although the petitioner is not biologically related to the child, SCPA 1703, which is applicable to this proceeding (see Family Ct Act § 661), provides that a petition for the appointment of a guardian may be brought by “any person” (SCPA 1703 …). Nor was there any basis in the record to dismiss the petition with prejudice … .  Matter of Karma-Marie W. (Jerry W.), 2025 NY Slip Op 00104, Second Dept 1-8-25

Practice Point: Pursuant to SCPA 1703 “any person” may petition for guardianship of a child. There is no requirement that petitioner be related to the child.

 

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THE DEATH OF A PARTY DIVESTS THE COURT OF JURISDICTION, STAYS THE PROCEEDINGS AND TERMINATES THE REPRESENTATION OF THE DECEASED’S ATTORNEY; ANY ORDERS ISSUED OR APPEALS TAKEN ARE VACATED OR DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that the death of a party divests the court of jurisdiction and terminates the representation of the attorney for the deceased person:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a)[, and] any determination rendered without such substitution will generally be deemed a nullity” … . Here, the Supreme Court erred in considering the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them because the motions were made after [plaintiff] Roe’s death and prior to any substitution of a personal representative of his estate (see id. § 1015 …). Accordingly, so much of the order … as granted the separate motions of the LMB defendants … to dismiss the complaint insofar as asserted against each of them must be vacated as a nullity (see CPLR 1015 …), and the appeal taken by the plaintiff Cheryl Lee from so much of the order … granting those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action must be dismissed.

Furthermore, the death of a party also terminates an attorney’s authority to act on behalf of the deceased party … . Thus, Roe’s former attorneys lacked the authority to file either the cross-motion or this appeal on his behalf. Accordingly the appeal purportedly taken on Roe’s behalf must be dismissed … . Lee v Leeds, Morelli & Brown, P.C., 2024 NY Slip Op 06624, Second Dept 12-24-24

Practice Point: The death of a party divests the court of jurisdiction, stays the proceedings until a substitution is made, and terminates the representation of the attorney for the deceased. Any orders issued or appeals taken after the party’s death and before substitution must be vacated or dismissed.​

 

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