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Plaintiff Brings an Action to Recover Damages


In an action to recover damages for personal injuries and for wrongful death, the defendant X. Co. appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it. This Court now ORDERED that the order is affirmed insofar as appealed from, with costs.

The decedent Mr. A.B initially commenced this action for personal injuries against the defendant X. Co., claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, Ms. M, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father’s alleged wrongful death. Special Term denied Standard’s cross motion to dismiss the complaint as against it, rejecting Standard’s argument that the Surrogate’s Court, Kings County did not have the power to declare Ms. M the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.

It is explained pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard’s assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent’s connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned, this was further illustrated in the case of Stolz v. New York (Cent. R.R. Co., 7 N.Y.2d 269, 196 N.Y.S.2d 969, 164 N.E.2d 849).

X. Co.’s alternative argument for dismissal of the action is equally unavailing. The proposed amended complaint sets out a sufficient cause of action for wrongful death as illustrated in the case of Chong v. New York City (Tr. Auth., 83 A.D.2d 546, 547, 441 N.Y.S.2d 24). In any event, X. Co. advances arguments more appropriately considered on a motion for summary judgment. If this is indeed what Standard was seeking, its cross motion was premature as issue had not yet been joined, see CPLR 3212[a].

Special Term properly retained jurisdiction over the action to recover damages for personal injury and wrongful death, as the instant lawsuit involves independent matters involving controversies between living persons and not matters affecting the estate of the decedent as illustrated in the case of Matter of Lainez (79 A.D.2d 78, 435 N.Y.S.2d 798, affd. 55 N.Y.2d 657, 446 N.Y.S.2d 942, 431 N.E.2d 303; SCPA ยง 201).

If your deceased loved one has a claim for damages in connection with his or her death, seek the assistance of Stephen Bilkis & Associates. We may be saddened by the loss of our loved one, but we must always remember that the law has set out remedies to compensate us from the sufferings and wounded feelings we experienced.

To provide you a free legal consultation, you may call us at our toll free number or visit one of our office locations Manhattan, the Bronx, Brooklyn, Queens, Long Island, Nassau County, Suffolk County and Westchester County.

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