Opinion
2018–08678 Index No. 28528/07
02-13-2020
Victor RIVERA, Plaintiff, v. Joann SKEEN, et al., Defendants; Jesenia Rivera, etc., Nonparty-Appellant.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and Ann Jenn of counsel), for nonparty-appellant.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and Ann Jenn of counsel), for nonparty-appellant.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, nonparty Jesenia Rivera, as administrator of the estate of Victor Rivera, deceased, appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered May 8, 2018. The order denied her unopposed motion pursuant to CPLR 1015 for leave to substitute herself as the party plaintiff in place of Victor Rivera in this action and to amend the caption accordingly.
ORDERED that on the Court's own motion, the notice of appeal dated May 29, 2018, is deemed to be a notice of appeal by nonparty Jesenia Rivera, as administrator of the estate of Victor Rivera, deceased (see CPLR 2001 ; Matter of Tagliaferri v. Weiler , 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864 ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion of nonparty Jesenia Rivera, as administrator of the estate of Victor Rivera, deceased, pursuant to CPLR 1015 for leave to substitute herself as the party plaintiff in place of Victor Rivera in this action and to amend the caption accordingly is granted.
The plaintiff, Victor Rivera (hereinafter Victor), allegedly sustained injures when he slipped and fell on a sidewalk abutting premises owned by the defendant Joann Skeen (hereinafter the defendant), and subsequently commenced this action against the defendant, among others. In March 2015, Victor and the defendant settled the action for $90,000. In January 2016, Victor died. Thereafter, Jesenia Rivera, as administrator of Victor's estate (hereinafter Jesenia), moved pursuant to CPLR 1015 for leave to substitute herself as the party plaintiff and to amend the caption accordingly. Jesenia contended that substitution was necessary in order to pursue the entry of a judgment because the defendant had failed to pay the sum due under the settlement agreement. The Supreme Court denied the unopposed motion on the ground that the action was no longer pending.
Contrary to the Supreme Court's determination, the settlement of the action did not preclude the granting of a motion for substitution (see CPLR 1015[a] ; 1021; see generally Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 55, 421 N.Y.S.2d 556, 396 N.E.2d 1029 ). "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)" ( Vapnersh v. Tabak, 131 A.D.3d 472, 473, 15 N.Y.S.3d 131 [internal quotation marks omitted]; see Medlock v. Dr. William O. Benenson Rehabilitation Pavilion, 167 A.D.3d 994, 995, 92 N.Y.S.3d 64 ; Stancu v. Cheon Hyang Oh, 74 A.D.3d 1322, 1322–1323, 903 N.Y.S.2d 268 ). Without substitution as a party plaintiff, Jesenia may not seek relief pursuant to CPLR 5003–a. CPLR 5003–a provides that if a settling defendant fails to pay the sum due under a settlement agreement within 21 days of tender of a duly executed release and a stipulation discontinuing the action, the settling plaintiff may, without further notice, pursue the entry of a judgment in the amount of the settlement, plus interest, costs, and disbursements (see CPLR 5003–a[a], [e] ; Kumar v. Demasi, 170 A.D.3d 986, 988, 96 N.Y.S.3d 600 ; Azbel v. County of Nassau, 149 A.D.3d 1020, 1021, 53 N.Y.S.3d 656 ; Davila v. Cornelia 1731 Corp., 139 A.D.3d 999, 999, 30 N.Y.S.3d 826 ; Pitt v. New York City Hous. Auth., 106 A.D.3d 797, 797–798, 964 N.Y.S.2d 631 ; Klee v. Americas Best Bottling Co., Inc., 76 A.D.3d 544, 545, 907 N.Y.S.2d 260 ). Accordingly, the court should have granted Jesenia's unopposed motion for leave to substitute herself as the party plaintiff in place of Victor Rivera and to amend the caption accordingly.
MASTRO, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.