In an action to recover damages for medical malpractice and lack of informed consent, etc., in which the defendant SSS Medical Center commenced a third-party action against KC, as successor executor of the estate of Mr. RR, KC appeals from an order of the Supreme Court, dated May 1, 2009, which, inter alia, denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of Mr. RR terminated by operation of law.
On July 18, 2002, the plaintiff Mr. T underwent surgery at SSS Heights Medical Center (hereinafter SSS), and Mr. RR served as his anesthesiologist. Mr. RR died on October 1, 2002. On October 21, 2002, Mr. RR’s father, Mr. X, as executor of Mr. RR’s estate, petitioned the Surrogate’s Court, New York County, to have Mr. RR’s will admitted to probate. The petition to admit the will to probate stated that Mr. RR died while a domiciliary of New York, and that KC was named in the will as successor executor. By decree dated November 25, 2002, the will was admitted to probate, and on November 26, 2002, letters testamentary were issued to Mr. X. Thereafter, Mr. X died.
In 2003 the plaintiffs commenced the main action against, among others, SSS. In 2008, SSS commenced the instant third-party action against KC (hereinafter the appellant), as successor executor of Mr. RR’s estate, seeking common-law indemnification. The appellant, a resident of Colorado, retained Colorado attorneys X&Y. On behalf of their client, X&Y entered a stipulation with SSS, in which, inter alia, the appellant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for Mr. RR. The stipulation also stated that SSS “will seek no recovery from the Estate of Mr. RR, M.D., except to the extent of any professional liability insurance available to the Estate of Mr. RR, M.D., deceased.”
By notice of motion dated December 31, 2008, the appellant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant’s affidavit stating that “I had been designated as Successor Executor of the Estate of Mr. RR, but the Estate was closed, and my role was extinguished” in 2006. Her attorney also submitted an affirmation acknowledging that “KC had been personal representative for an Estate which was domiciled and probated in Colorado,” but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, “if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates”. No documents were submitted in support of the appellant’s claim that her status as personal representative had terminated. In opposition, SSS noted that “in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.”
In the order appealed from, the Supreme Court denied the appellant’s motion because she failed “to establish that at the time of service the estate had been closed under laws of Colorado.”
The appellant acknowledges that she had been appointed the personal representative for Mr. RR’s estate, “which was domiciled and probated in Colorado.” A plaintiff may commence an action in New York against a “foreign executor,” that is, an executor domiciled in another jurisdiction. Further, the appellant did not submit any evidence that a closing statement was in fact filed closing the estate, or any other evidence that her appointment terminated. In view of the foregoing, the Supreme Court properly determined that the appellant failed to establish that she was no longer the personal representative of Mr. RR’s estate at the time the third-party action was commenced.
The appellant’s remaining contentions either are without merit or need not be addressed considering our determination. ORDERED that the order is affirmed, with costs.
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