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Court Decides Case Regarding Rhode Island’s Non-claim Statute


A New York Probate Lawyer said that, plaintiff was a patient of the decedent doctor, a general dentist. He died on September 12, 2005. Although he lived in New York at the time of his death, a probate estate was commenced in Rhode Island where he possessed property and where, over a decade earlier, he had executed his will. On December 8, 2005, the decedent’s brother (who happens to be an attorney), was appointed as Executor of the Estate of the decedent (“the Executor”) In late December 2005, he sent plaintiff care of her attorney, a “Notice of Commencement of Probate,” which set forth information regarding the decedent’s Rhode Island probate estate.

A New York Will Lawyer said that, plaintiff commenced this dental-malpractice action against the Executor in June 2006. In her Verified Complaint, she alleges that the decedent committed malpractice while rendering dental treatment between September 11, 2004, and February 15, 2005. The Executor’s Verified Answer (dated August 24, 2006), includes the affirmative defenses of failure to “timely file a claim against decedent’s estate” pursuant to Rhode Island General Laws §§ 33-11-4, 5, 9 and “insufficient service of process.”

A Nassau County Probate Lawyer said that, pursuant to CPLR 3211, defendant Executor of the Estate of the decedent moves to dismiss this dental malpractice action commenced by plaintiff, arguing that plaintiff failed to comply with Rhode Island’s non-claim statute and failed to properly serve him. Plaintiff opposes the motion and, as a precautionary matter, cross-moves for an extension of time to properly serve the Summons and Verified Complaint.

The issue in this case is whether the claim should be dismissed on the ground that plaintiff failed to comply with Rhode Island’s non-claim statute and failed to properly serve the executor of the estate.

A Staten Island Probate Lawyer said on October 2006, the Executor made this motion to dismiss. He urges, among other things, that New York courts must apply Rhode Island’s “statute of non-claim,” which provides: “Claims against a Rhode Island estate shall be filed within six (6) months from the first publication of notice of the appointment of either an executor or administrator. Claims not filed within six (6) months from the publication shall be barred; provided, that a creditor who, by reason of accident, mistake or any other cause, has failed to file his or her claim, may, at any time, before the distribution of the estate, petition the probate court for leave to file his or her claim, and the probate court, after notice to the executor or administrator of the estate and a hearing on the petition, may in its discretion, grant leave to file the claim upon the terms, if any, as the court shall prescribe, which claim, if allowed, shall be paid out of the assets remaining in the hands of the executor or administrator at the time of the receipt by him or her of notice of the pendency of a petition.”

Shortly after being served with this motion, plaintiff petitioned the Probate Court of the City of Providence to allow for the late filing of a claim. In December 2006, the Probate Court found that insurance coverage was sufficient to satisfy any judgment and ordered that plaintiff “could file her claim by December 22, 2006, in accordance with Section 33-11-5 of the Rhode Island General Laws authorizing the Court to allow the late filing of a claim whenever there is reason by accident, mistake, or other cause; however, no assets of the estate other than the aforesaid insurance shall be available to satisfy any judgment which may be rendered in her favor.” The Order further set forth that the “Executor may disallow the claim as may be filed by plaintiff on or before January 13, 2007.

Subsequently, plaintiff filed a claim against the decedent’s estate in Probate Court in Rhode Island. On December 26, 2006, the Executor disallowed the claim, and after that point, plaintiff did not take any further action to pursue her dental-malpractice case in Rhode Island’s courts. The Executor now argues that plaintiff’s action must be dismissed because plaintiff cannot “ignore the Rhode Island Probate Court’s Order and pursue her claim in this Court, rather than proceed in conformity with those remedies made available to her pursuant to the Probate Court’s Order and Rhode Island’s non-claim statute.” The Executor argues that Rhode Island law required plaintiff to either timely sue in Rhode Island Superior Court, or to proceed with a proof-of-claim hearing before the Probate Court.

Plaintiff counters that, pursuant to Rhode Island law, once the Executor disallowed her claim her only recourse was to proceed with her action before the Probate Court, City of Providence. “Such a requirement,” she argues, “is not only illogical, unfair and unjust, but impossible to effectuate” because “the Probate Court lacks subpoena power and cannot conduct a jury trial.”

The court held that although plaintiff is wrong, her action will nonetheless survive. It is well-settled that a plaintiff suing the personal representative of an out-of-state estate must comply with the jurisdiction’s statutory requirements for commencement of an action regardless of the strong New York contacts associated with the case.

The objective of Rhode Island’s non-claim statute is to “produce a speedy settlement of estates, and the repose of titles derived under persons who are dead.” Accordingly, Rhode Island’s non-claim provision requires that any claim against an estate administration be filed with the Probate Court within six months of publication of the identity of the estate’s personal representative. A claim against a Rhode Island estate can only be filed later if the estate has not been distributed and the claimant receives the Probate Court’s permission to file a late claim.

After a claim is properly filed, the executor of the estate can timely disallow it in whole or in part. If there has been no disallowance and the estate is solvent then the executor “shall pay” the claim. As to disallowed claims against a solvent estate, Rhode Island General Laws § 33-11-48 authorizes: “suit on claims disallowed may be brought within thirty (30) days after notice is given to the claimant that the claim is disallowed.”

Although the Executor disallowed the claim, plaintiff’s suit was brought well within 30 days of the disallowance. In fact, her suit—which the Executor undoubtedly knew about all along— was commenced in New York even before the claim was disallowed in Rhode Island. Because the Executor was well aware of the pendency of the action, there was no need for plaintiff to commence yet another action after the disallowance.

The Executor, moreover, has not demonstrated that Rhode Island General Laws § 33-11-48 mandates that a claimant’s post-disallowance suit be commenced exclusively in a Rhode Island court. Though Rhode Island cases construing the provision state that after disallowance a suit can be commenced in Rhode Island’s Superior Court, there is absolutely no indication either in the cases or in the statute that suits in other courts are prohibited. Here, by contrast, neither plaintiff nor her dispute have any connection whatsoever to Rhode Island and the Executor has not established that her “suit on [a claim disallowed” cannot be brought in New York in accordance with General Laws of Rhode Island § 33-11-48.

There has been full compliance with the letter and spirit of Rhode Island’s non-claim law. Plaintiff properly filed a claim against the decedent’s probate estate. The Executor had notice of the claim, which will not deplete the value of the estate because pursuant to the Rhode Island Probate Court’s Order—to be given full faith and credit in New York—recovery will be limited to the decedent’ liability insurance proceeds. Finally, immediately after the Executor’s disallowance he unquestionably knew of the pendency of this dental-malpractice suit to resolve the merits of plaintiff’s claim against the estate. Under these circumstances, it would be wholly inequitable to dismiss her suit. Thus, the Executor’s motion to dismiss for failure to comply with Rhode Island’s non-claim statute is denied.

The Executor also moves for dismissal of the action based on improper service of process. He swears under oath that on “July 27, 2006, he found a copy of the Summons and Verified Complaint in this matter in an envelope taped to the door of his residence located at 334 Smith Street, and that he did not receive a copy of the Summons and Verified Complaint by first class mail at his residence, which is also his actual place of business.” For that reason (among others), he correctly argues, that there has not been compliance with CPLR 308(4)’s “nail and mail” provision.

CPLR 306-b authorizes this Court to grant an extension of time to serve the summons and complaint in the interest of justice. The “interest of justice standard” contemplates accommodation of late service due to a mistake, confusion or oversight, so long as there is no prejudice to the defendant. It requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the causes of action, the length of the delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant.”

Plaintiff diligently attempted (if not effected) service within the time frame allotted by the CPLR. Until this motion was made, she had no concrete reason to believe that service may have been improper and that her process server’s affidavit may have been faulty. Additionally, without an extension of time to serve, some of her allegations may be barred by the statute of limitations (those alleging malpractice in connection with treatment dates more than two and a half years ago—unless there was continuous treatment).

The Executor, moreover, had actual knowledge of the lawsuit within the statute of limitations and would not be prejudiced by an extension of time to serve (it is unlikely that the Executor has any relevant substantive information anyway—there is no real fear that between the time service was supposed to have been effected and now his memory may have faded.

Thus, in the interest of justice, plaintiff’s cross-motion for an extension of time to serve the Executor is granted and plaintiff must properly serve the Executor within 30 days of the date of this Decision and Order.

Accordingly, the court held the that the defendant’s motion to dismiss is denied; and it is further ordered that plaintiff’s cross-motion is granted to the limited extent that pursuant to CPLR 306-b she is granted 30 days from the date of this Decision and Order to properly serve the Executor; and it is further ordered that the parties are to appear for a preliminary conference on May 1, 2007 at 10:30 a.m.

If you have a claim against the estate, seek the assistance of a New York Probate Attorney and New York Estate Litigation Attorney to timely file your claim. Call us at Stephen Bilkis and Associates.

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