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Court Decides Jurisdiction Issue


In an action to recover damages for medical malpractice and lack of informed consent, in which the accused Medical Center commenced a third-party action against the woman as successor executor of the estate of her husband. The woman appeals from an order of the Supreme Court which denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of her husband was terminated by operation of law.

New York Probate Lawyers said that on July 18, 2002, the complainant underwent surgery at the Medical Center and the woman’s husband served as the complainant’s anesthesiologist. The anesthesiologist died and his father, as the executor of the anesthesiologist’s estate, petitioned the Surrogate’s Court to have the will admitted to probate. The petition to admit the will to probate stated that the anesthesiologist died while a resident of New York, and that his wife was named in the will as successor executor. By decree, the will was admitted to probate and letters testamentary were issued to the anesthesiologist’s father. Thereafter, the father died.

The complainants commenced the main action against the Medical Center. The Medical Center commenced the instant third-party action against the wife, as successor executor of the anesthesiologist’s estate, seeking common-law indemnification. Brooklyn Probate Lawyers said the complainant, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the law firm entered into a stipulation with the Medical Center, in which the complainant 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 the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

Long Island Probate Lawyers said by notice of motion, the complainant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the complainant’s affidavit stating that he had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and his role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that the woman 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 complainant’s claim that her status as personal representative had terminated. In opposition, the Medical Center 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 complainant’s motion on the ground that she failed to establish that at the time of service the estate had been closed under laws of Colorado.

The complainant acknowledges that she had been appointed the personal representative for the anesthesiologist’s estate, which was resident and probated in Colorado. A complainant may commence an action in New York against a foreign executor, that is, an executor residing in another jurisdiction. Further, the complainant 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 complainant failed to establish that she was no longer the personal representative of the estate at the time the third-party action was commenced. The complainant’s remaining contentions either are without merit or need not be addressed in light of full determination.

When you are assigned as an administrator of a loved one’s will and some members of the family object to it, call the Kings County Probate Lawyers together with Kings County Will Contest Attorneys. Simple misunderstandings can lead to an ugly situation between families and you may want to consult Kings County Estate Attorney of Stephen Bilkis and Associates.

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