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Court Looks at Jurisdiction Issue in Probate Case


Plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. A Probate Lawyer said that instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z’s attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z’s surviving family members in an attempt to ascertain the name of the Estate’s Administrator and obtain a certified copy of Mrs. Z’s death certificate. Mrs. Z’s surviving family informed K&K that no administrator would be appointed. Mrs. Z’s family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent’s death certificate to plaintiffs’ attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Manhattan Probate Lawyers said the New York State Constitution confers general original jurisdiction in law and equity to the Supreme Court. The legislature defined the general jurisdiction of the court in Judiciary Law § 140-b, wherein it states: “The general jurisdiction in law and equity which the supreme court possesses under the provisions of the constitution includes all the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme court of the state has all the powers and authority of each of those courts and may exercise them in like manner.”

New York City Probate Lawyers said the Appellate Division, First Department specifically recognized that the Supreme Court has jurisdiction to entertain applications for the appointment of temporary administrators. Therefore, it is without question that this court has concurrent authority with the Surrogate’s Court to grant temporary letters of administration.

Upon the death of a party to an action, the CPLR § 1015 directs the court to substitute a proper party. The statute, in relevant part states that: “if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.”

The procedure governing substitution of parties is found in CPLR § 1021. That statute states in pertinent part that: “a motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant.”

Plaintiffs argue that the holding in Harding v. Noble Taxi Corp. is controlling in this case. However, Harding is distinguishable from the facts presented before this court. In Harding the Appellate Division overturned the ruling of the Supreme Court that improperly denied a motion for the substitution and appointment of a temporary administrator, and instead suasponte ordered the severance of the plaintiff’s cause of action, and all the cross claims against the deceased on the eve of trial.

Here, plaintiffs make no representation that this case is on the eve of trial. In addition, the decision in Harding is silent with respect to who plaintiff sought to be substituted and named temporary administrator of the Estate. Instead, plaintiffs argue that K&K had the responsibility to have an administrator appointed.

In Wisdom v. Wisdom, the Appellate Division, First Department, stated: “just as the death of a principal ordinarily revokes the authority of the agent, so the death of a party to an action revokes the power of the attorney. Where a party to an action dies, any surviving interest in the action passes from the decedent to his or her representative who may well have unique interests. The new party cannot be required to rely on decedent’s counsel, no matter how capable.

K&K’s authority to act on behalf of Mrs. Z ceased on her death. Furthermore, plaintiffs’ argument that K&K would be the likely choice as counsel to the Estate is without any basis. K&K is a member of XXX’s Staff Counsel Office which handles insurance defense. Mrs. Z was insured by XXX Insurance Company. This relationship differs from other attorney client relationships. The Supreme Court in Castrovinci v. Edwards, acknowledged that where a liability insurance carrier retains an attorney to defend an insured the usual personal attorney-client relationship does not exist.

Plaintiffs further rely on the Appellate Division, First Department’s decision in Vanarthros v. St. Francis Hosp. to advance their position that a law firm may be substituted and appointed as a temporary administrator of an estate. In that case, the trial court granted plaintiffs’ motion to appoint a temporary administrator for the estate of Dr. “John Doe” and appointed the law firm of W, E, M, E & D as guardian to act as temporary administrator of the estate of the defendant Dr. “John Doe” for purposes of defending the action. The Appellate Division did not reach a decision with respect to the propriety of the appointment of W, E, M, E & D to act as guardian and temporary administrator. Instead, the Appellate Division found that the appellant St. Francis Hospital lacked standing to complain about the representation of the estate of “John Doe”.

The laws controlling the appointment of an administrator of an estate are found in Surrogate’s Court Procedure Act §§ 1001 and 1002. Plaintiffs have not supported their application for the appointment of a temporary administrator with any of the appropriate authorities as set out in those statutes. The Supreme Court, although a court of general jurisdiction, must enforce the applicable laws relating to the administration of estates.

The plaintiff in this action have failed to base their selection of a temporary administrator in accordance with the laws as set forth in Surrogate’s Court Procedure Act §§ 1001 and 1002. The Supreme Court is not without the authority to appoint a temporary administrator and herein appoints the Public Administrator of Richmond County. Accordingly it is further ORDERED, that plaintiff’s motion to substitute K&K as temporary Administrator of the Estate of Mrs. Z is denied in its entirety; and it is further ORDERED, that the Public Administrator of Richmond County located at 130 Stuyvesant Place, Staten Island, NY 10301, is hereby appointed as Temporary Administrator of the Estate of Mrs. Z; and it is further ORDERED, that the Public Administrator and the State of New York shall be held harmless for any proceeds possibly recovered by the plaintiffs beyond the insurance coverage maintained by the decedent, Mrs. Z.

If you have any question concerning the estate of your deceased loved one, the Richmond County Estate Lawyers of Stephen Bilkis & Associates can give you a detailed advice to the most common as well as the complex issues involving real property of a dead person.

When it comes to the management of your property of that of a deceased person, you will need the legal services of our Richmond County Estate Administration Attorneys. To answer your legal queries, call us for free consultation.

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