You are here: / Trusts and Estates
,

ALTHOUGH THE MEDICAL MALPRACTICE ACTION WAS COMMENCED IN DECEDENT’S NAME AFTER DECEDENT HAD DIED, THE ACTION WAS NOT A NULLITY AND WAS PROPERLY REVIVED WITHIN SIX MONTHS PURSUANT TO CPLR 205 (a); SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court and ruling on some issues of first impression, determined plaintiffs’ medical malpractice action should not have been dismissed. The decision is too detailed and comprehensive to be fairly summarized here. The medical malpractice action was started in 2013 in decedent’s name three months after decedent’s death. Supreme Court erroneously declared that action a nullity. The order dismissing the 2013 action did not include the reasons for the dismissal as is required by the statute. In a later order, Supreme Court attempted to supply the missing reason as “neglect to prosecute.” The Second Department held that the 2013 action was not a nullity and it was properly revived within six months of the dismissal. The subsequent attempt to provide the reason for the dismissal as “neglect to prosecute,” which would preclude reviving the action within six months, was ineffective. The Second Department’s summary of its holding states:

The plaintiff, pursuant to CPLR 205(a), was entitled to commence this action upon the termination of the 2013 action. The order dated November 6, 2015, directing the dismissal of the 2013 action did not set forth on the record a specific pattern of conduct constituting a neglect to prosecute required by CPLR 205(a) to preclude the commencement of subsequent litigation against the defendants, the plaintiff’s nonviable substitution motion does not constitute evidence of neglect to prosecute, and the erroneous naming of the decedent as a plaintiff in the 2013 action does not preclude the application of CPLR 205(a). In addition, CPLR 5019(a) is inapplicable, as the June 6, 2016, order cannot be utilized to substantively change the order dated November 6, 2015.

Accordingly, the judgment entered August 23, 2016, is reversed, on the law, the complaint is reinstated … . Sokoloff v Schor, 2019 NY Slip Op 06176, Second Dept 8-21-19

 

, , ,

PROTRACTED DELAY IN PLAINTIFFS’ SEEKING SUBSTITUTION OF PARTIES IN THIS MEDICAL MALPRACTICE ACTION AFTER INFANT PLAINTIFF’S DEATH DID NOT REQUIRE DISMISSAL OF THE COMPLAINT, DEFENDANTS WERE IN POSSESSION OF THE MEDICAL RECORDS AND OTHER RELEVANT INFORMATION AND THEREFORE WERE NOT PREJUDICED BY THE DELAY; IN ADDITION, THE MOTION TO AMEND THE COMPLAINT TO ADD WRONGFUL DEATH SHOULD HAVE BEEN GRANTED UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ protracted delay in substituting father for the deceased infant in this medical malpractice action did not require dismissal of the complaint because the defendants were in possession of all the relevant medical records and therefore were not prejudiced by the delay. The court also noted that motion to amend the complaint to assert wrongful death should have been granted under the relation-back doctrine:

CPLR 1021 requires a motion for substitution to be made within a reasonable time … , and the determination of whether the timing is reasonable requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit … . Here, the plaintiffs moved, inter alia, for leave to substitute Jean Petion, who is the father of the plaintiff Jeremiah Prince Petion (hereinafter the deceased infant) and administrator of the deceased infant’s estate (hereinafter the administrator), in place of the deceased infant as a party plaintiff and to amend the caption accordingly. Although the plaintiffs admit that the delay in seeking the substitution of the administrator was protracted … , the plaintiffs showed that there was no prejudice to the defendants because the defendants were on notice of the claims against them as early as February 2, 2009, when the plaintiffs filed a notice of claim against the defendant New York City Health and Hospitals Corporation, and the defendants possessed all of the relevant medical records … . In opposition, the defendants asserted only conclusory allegations of prejudice based solely on the passage of time … . The plaintiffs also demonstrated that they have potentially meritorious causes of action through their expert’s affidavit of merit, the pleadings, and the testimony of Marie Petion at the General Municipal Law § 50-h hearing … . Petion v New York City Health & Hosps. Corp., 2019 NY Slip Op 06107, Second Dept 8-7-19

 

,

THE REMAINDER BENEFICIARIES’ ACTION ALLEGING THE EXECUTOR’S VIOLATION OF A STANDSTILL AGREEMENT, WHICH REQUIRED THE EXECUTOR TO KEEP THE FUNDS FROM THE SALE OF THE DECEASED’S BUSINESS IN A SEGREGATED ACCOUNT UNTIL THE DAUGHTERS’ REMAINDER INTERESTS WERE DETERMINED, DID NOT VIOLATE THE IN TERROREM CLAUSE OF THE WILL WHICH PROHIBITED THE DAUGHTERS FROM CONTESTING THE WILL, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the daughters of the deceased, remainder beneficiaries, did not violate the in terrorem clause of the will by bringing an action against the executor alleging the executor’s violation of a standstill agreement.  In the standstill agreement with the executor (Anna Marie, the deceased’s wife), Anna Marie agreed to hold the proceeds from the sale of the deceased’s interest in a business in a segregated bank account while Anna Marie and the daughters determined the daughters’ interests in the liquidated assets as remainder beneficiaries of Anna Marie’s life estate:

The will included an in terrorem clause which provided for the revocation of the interest of any beneficiary who “institute[s] . . . any proceedings to set aside, interfere with, or make null any provision of this Will, . . . or shall in any manner, directly or indirectly, contest the probate thereof.” The will left the “rest, residue, and remainder” of the decedent’s estate to Anna Marie, absolutely, “to the exclusion of any children of mine.” * * *

… [T]the daughters alleged in the Supreme Court action that Anna Marie breached her fiduciary duty as executor and holder of the life estate in the decedent’s interest in Brady Avenue by taking possession of the entire proceeds of the sale to the exclusion and detriment of the daughters as remainder beneficiaries. The daughters have not lodged any contest to the validity of the will, or otherwise interfered with its provisions granting Anna Marie discretion to dispose of estate assets in her capacity as executor. Moreover, the claim that Anna Marie violated the standstill agreement did not implicate any challenge to the will. Thus, we disagree with the determination of the Surrogate’s Court that the daughters violated the in terrorem clause of the will and forfeited their legacies under the will … . Matter of Sochurek, 2019 NY Slip Op 05987, Second Dept 7-31-19

 

, , ,

ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL MALPRACTICE/WRONGFUL DEATH ACTION MAY BE A WITNESS, UNDER THE PARTICULAR FACTS OF THE CASE, DISQUALIFICATION PURSUANT TO THE ADVOCATE-WITNESS RULE WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the attorney representing his mother’s estate in the medical malpractice/wrongful death action may be a witness, the advocate-witness rule, under the particular facts of this case, did not require disqualification:

… [T]he advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation  … . Rule 3.7(a) of the Rules of Professional Conduct … provides that, in general, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” There is an exception to this rule when “disqualification of the lawyer would work substantial hardship on the client”… . Further, the advocate-witness rule generally does not control where the attorney is also a litigant … . However, estate representatives represent the interests of the estate’s beneficiaries, rather than their own. Therefore, generally, the advocate-witness rule will prevail over a fiduciary-attorney’s right to self-representation … . …

Here, the other distributee affirmed that his interests in the lawsuit are identical to those of the plaintiff, whom he wished would remain as attorney for the estate. Accordingly, while the plaintiff is not a party in his individual capacity, his personal property interests as one of two distributees of the estate are at stake (see EPTL 5-4.4[a] …), and his interests appear to be identical to those of the estate … . Furthermore, the plaintiff affirmed that his attempt to retain different counsel for the estate was unsuccessful, such that his disqualification as counsel would essentially foreclose the claim, working substantial hardship on the estate and its distributees … . Greenberg v Grace Plaza Nursing & Rehabilitation Ctr., 2019 NY Slip Op 05390, Second Dept 7-3-19

 

,

SURR0GATE’S COURT PROPERLY DENIED THE ADMINISTRATOR’S PETITION FOR AUTHORITY TO CONDUCT A SHORT SALE OF DECEDENT’S REAL PROPERTY WHICH WAS WORTH SUBSTANTIALLY LESS THAN THE MORTGAGE WHICH ENCUMBERED THE PROPERTY, CONCLUSORY ASSERTIONS IN THE PETITION INSUFFICIENT (SECOND DEPT).

The Second Department determined Surrogate’s Court properly denied the petition by the administrator of decedent’s estate seeking authority to conduct a “short sale” of real property that was worth substantially less than the mortgage which encumbered the property. Surrogate’s Court determined the proof offered in support of the petition fell short in several respects:

A decedent’s personal property is the primary source for the payment of the decedent’s debts, and land cannot be used as a source of funds unless the personalty has been exhausted … . However, the primary source for payment of a mortgage debt is the mortgaged premises (…EPTL 3-3.6). To obtain court authorization to sell real property to satisfy a decedent’s debts, including mortgage debts, a personal representative must demonstrate that the decedent’s personal property is insufficient to satisfy the debts (see SCPA 1902[3] …).

A Surrogate has ” the right to decree intelligently, and upon equitable principles, and to order [executors’ and administrators’] conduct upon principles of justice and of reason,'” and may not ” rubber stamp'” an application without examining its basis … . Here, we agree with the Surrogate’s Court’s determination that, without other evidence, the petitioner’s conclusory assertions regarding the extent of the decedent’s personal property and debts, the existence and status of the mortgage, and the identities of potential distributees were insufficient to support the relief he sought. Matter of Kahn, 2019 NY Slip Op 04384, Second Dept 6-5-19

 

, ,

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, HEARSAY IS ADMISSIBLE IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this slip and fall case should not have been granted. The complaint alleged plaintiff’s decedent tripped over a raised portion of a sidewalk. The evidence included plaintiff’s decedent’s explanation of the cause of the fall as described by plaintiff-wife. Defendants argued plaintiffs could not prove the cause of the fall because decedent’s statements were inadmissible hearsay. The Second Department noted that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only evidence. Here there was circumstantial evidence of the cause of the fall:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact. They failed to demonstrate that the cause of the decedent’s fall could not be established by admissible evidence, either direct or circumstantial … . While the defendants contend that the plaintiff’s deposition testimony as to what the decedent told her as to how the accident occurred constituted inadmissible hearsay, hearsay may be considered on a motion for summary judgment so long as the hearsay evidence is not the only evidence of a triable issue of fact … . The defendants’ submissions included the plaintiff’s own deposition testimony concerning her personal observations of the location of the accident shortly after the event and photographs of the claimed defect. Thus, the defendants failed to carry their burden of demonstrating that the plaintiff could not establish, through direct or circumstantial evidence, that the decedent tripped and fell as the result of a defect in the sidewalk.

Further, since the defendants failed to submit evidence as to when they last inspected the sidewalk, they failed to establish lack of constructive notice of the allegedly defective condition of the sidewalk … . Kontorinakis v 27-10 30th Realty, LLC, 2019 NY Slip Op 03579, Second Dept 5-8-19

 

,

SURVIVING PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION DID NOT TIMELY MOVE TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEDENT PURSUANT TO CPLR 1021, ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined the medical malpractice action brought on behalf of a deceased plaintiff by the surviving plaintiff was properly dismissed for failure to timely substitute a representative for the decedent pursuant to CPLR 1021:

“A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction” over a deceased party’s successors in interest, and such motion “is not a mere technicality” … . CPLR 1021 provides, in pertinent part, “[i]f 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.” “The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit” … .

Here, the record does not support a finding that the surviving plaintiff diligently sought to substitute a representative for the decedent. The proffered explanation for the surviving plaintiff’s delay in obtaining letters of administration was unsubstantiated and insufficient to constitute a reasonable excuse. Moreover, the surviving plaintiff failed to submit an affidavit of merit by a medical expert and did not rebut the defendants’ allegations that they had been prejudiced by the delay in substitution. Contrary to the surviving plaintiff’s contention, the underlying pleadings and verified bill of particulars, standing alone, do not establish the potential merit of the medical malpractice action. Green v Maimonides Med. Ctr., 2019 NY Slip Op 03573, Second Dept 5-8-19

 

, ,

WIFE’S STATUS AS A BENEFICIARY OF AN ANNUITY PAID TO THE HUSBAND WAS REVOKED BY OPERATION OF THE ESTATES, POWERS AND TRUST LAW (EPTL) UPON DIVORCE (THIRD DEPT). ​

The Third Department determined an annuity paid to the husband in settlement of a medical malpractice action was not payable to the former wife (Malizia), as a beneficiary of the annuity, because her status as a beneficiary was revoked upon divorce, pursuant to the Estates, Powers and Trust Law (EPTL):

EPTL 5-1.4 (a) provides that, “[e]xcept as provided by the express terms of a governing instrument, a divorce . . . revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse.” Malizia’s argument that EPTL 5-1.4 does not apply to the annuity is unavailing. Although an annuity is not specifically identified as a governing instrument by EPTL 5-1.4 (f) (5), the statute expressly indicates that the list is illustrative and not exhaustive. An annuity is a testamentary substitute that operates similarly to the examples of governing instruments that are specifically named in the statute by providing for the disposition of property at death … . In that regard, the annuity specifically provided for payment of the monthly installments to decedent during his lifetime, and the beneficiary designation constituted a disposition of a property interest to the named beneficiary at decedent’s death, i.e., the right to receive any guaranteed payments required to be made after his death. The statute was enacted to prevent the inadvertent disposition of such property to a former spouse following termination of a marriage by creating a conclusive and irrebuttable presumption that any revocable disposition of property to a former spouse is automatically revoked upon divorce … . United States Life Ins. Co. In The City of New York v Shields, 2019 NY Slip Op 02593, Third Dept 4-4-19

 

,

ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

The Second Department, resolving a split among Surrogate’s Courts, determined that the attorney who drafted the 2005 will appointing himself as executor was required to have the testator sign an acknowledgment the testator had been informed that the failure to comply with statutory disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions:

The 2004 amendment [of Surrogate’s Court Procedure Act (SCPA) 2307-a] was intended, as reflected in both its text and in its legislative history, to require that the testator be informed that, absent the testator’s acknowledgment of receipt of the required disclosures, the attorney-executor would receive only one-half of the commissions otherwise payable. That the Legislature inadvertently included this fourth disclosure requirement only in model forms and not in the subdivision dealing directly with the required disclosures was an oversight, as is confirmed by the 2007 amendment and its legislative history … . …

At bar, the instrument signed by the testator in 2005 did not include an acknowledgment that he had been informed that the failure to comply with the disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions. Therefore, we agree with the Surrogate’s Court’s determination that the petitioner is entitled to only one-half of the statutory executor’s commissions … . Matter of Brier, 2019 NY Slip Op 02516, Second Dept 4-3-19

 

, , , ,

DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death actions should have been dismissed. With respect to the “lack of informed consent” cause of action, the court held that the submission of the informed consent form by the defendant did not violate the Dead Man’s Statute:

The plaintiff contends that Meyerson [defendant surgeon] cannot rely upon the portion of his expert’s affidavit which states that the decedent was aware of the risks of the procedure because he signed a consent form for a similar procedure in 2012, because this evidence would be inadmissible pursuant to CPLR 4519, the so-called Dead Man’s Statute. CPLR 4519 “precludes a party or person interested in the underlying event from offering testimony concerning a personal transaction or communication with the decedent” … .

While evidence excludable at trial under CPLR 4519 may be considered in opposition to a motion for summary judgment so long as it is not the sole evidence proffered … , such evidence “should not be used to support summary judgment” … . However, the statute does not bar “the introduction of documentary evidence against a deceased’s estate. . . . [A]n adverse party’s introduction of a document authored by a deceased does not violate the Dead Man’s Statute, as long as the document is authenticated by a source other than an interested witness’s testimony concerning a transaction or communication with the deceased” … . Inasmuch as the expert’s affidavit as to the decedent’s execution of the form was predicated upon the medical records, which contained the decedent’s consent form for the prior surgery and on which the expert relied, and the records were properly authenticated and submitted on the motion, Meyerson properly relied upon the expert opinion to support his motion … . Wright v Morning Star Ambulette Servs., Inc., 2019 NY Slip Op 02381, Second Dept 3-27-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy