Opinion
# 2015-045-026 Claim No. 119708
08-06-2015
LOMBARDI v. THE STATE OF NEW YORK and STONY BROOK UNIVERSITY HOSPITAL
No appearance Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General
Synopsis
Order dismissing the claim after death of claimant and no heirs being found after many years of searching.
Case information
| UID: | 2015-045-026 |
| Claimant(s): | CAROLEE LOMBARDI |
| Claimant short name: | LOMBARDI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and STONY BROOK UNIVERSITY HOSPITAL |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119708 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | No appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 6, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On October 17, 2012, the Court received a Stipulation Discontinuing Action with Prejudice signed by both claimant and defendant's attorneys. The attorney for the claimant submitted an Affirmation setting forth that his client, Carolee Lombardi had passed away on January 5, 2012. The underlying claim was for personal injury as a result of burns on her arm from a spilled cup of hot water while she was a patient at Stony Brook University Hospital. Claimant's attorney posits that liability cannot be proven as claimant's deposition had not been taken prior to her death and there are no other means of proving the case.
The attorney sets forth that claimant died without a valid will, no husband, no children or other relatives. He explains that this information was provided to him by an individual named Laura Minicozzi from Adult Protective Services who helped claimant with home care and from claimant's friend, Janice Muskaloon. Annexed as exhibits are a copy of the non-witnessed will leaving her possessions to Janice Muskaloon, a copy of a medical plan naming Muskaloon as proxy and a copy of a life insurance policy naming Muskaloon as sole beneficiary.
Upon death of a party, the court is divested of jurisdiction until a duly appointed representative is substituted for the deceased party (Griffin v Manning, 36 AD3d 530 [1st Dept 2007]). CPLR 1015 sets forth that upon death of a party, the court shall order substitution of the proper parties. According to CPLR 1021, an order of substitution may be sought by motion of any party, successor or the court may order substitution sua sponte. Claimant's counsel's authority is automatically revoked upon his client's death, thus claimant's counsel can not take any action. Any action taken by counsel on behalf of the deceased party is of no force or effect (Hyman v Booth Mem. Hosp., 306 AD3d 761 [2d Dept 2003]). As a general matter any orders of the court taken between the date of death and the substitution are null and void. CPLR 1021 also sets forth an exception to the court's lack of jurisdiction due to death to the extent of permitting a motion for substitution and a motion for dismissal for failure to make a timely substitution.
CPLR 1021 sets forth that a motion for substitution may be made by any party. 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 the dismissal shall not be on the merits unless the court indicates otherwise. Whether or not substitution occurs before or after final judgment, if the event requiring substitution is the death of a party, and timely substitution has not been made, the court before proceeding further shall on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action should not be dismissed. The courts have liberally interpreted the reasonable time standard, in Orellana v Malek, 116 Ad2d 557 [2d Dept 1986], dismissal was not warranted when made within 1 year of death and in Washington v Min Chung Hwan, 20 AD3d 303 [1st dept 2005], dismissal was warranted after a 7 year delay.
CPLR 1021 requires a motion by Order to Show Cause, with court-directed notice to the persons interested in the decedent's estate, as to why the action should not be dismissed. Such notice is a jurisdiction prerequisite to the court's consideration of the motion to dismiss (Gonzalez v Ford Motor Co, 295 Ad2d 474 [2d Dept 2002]). Notice solely to the attorney previously representing the decedent is ineffective because death revokes the attorney's authority to act (Rumola v Maimonides Medical Center, 37 AD3d 696 [2d Dept 2007]). Counsel for the party seeking dismissal must do sufficient research to identify and locate the decedent's heirs so that proper notice can be given as the court can only decide the motion to dismiss when proper notice has been given.
Court of Claims Act § 15 provides: In the event of the death of the claimant or of one of the claimants named in a claim of any nature against the state, heretofore or hereafter filed in the court of claims, and also in the event that by assignment or by operation of law, some person other than the claimant named in the claim has succeeded to the interest of one of the claimants named in such a claim, it shall be the duty of the personal representative of said claimant or of the person who succeeded claimant in interest to said claim or any interest therein within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim, to whose right, title and interest he has succeeded, and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, to all parties who have appeared in said action or proceeding or to the assignee or successor of the claimant may dismiss said claim.
Counsel for decedent has represented that there are no heirs to place on notice of a motion to dismiss. Consequently there is no motion before the Court and the Court is unable to determine the identity of decedent's heirs for the purposes of a sua sponte order to show cause. Therefore, based on the foregoing and the specific circumstances of this matter, the Court hereby dismisses the claim.
August 6, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims