The Rogak Report: 26 May 2004
- DEFENDANT'S ESTATE MAY BE SUBSTITUTED AS DEFENDANT EVEN THOUGH ACTION
Castro v. Mione, NYLJ 5/25/04 (Supreme Court, Kings County)(LEWIS, j.)
A slip and fall occurred on 5/31/2000 at a premises in Brooklyn. The
named defendant died on 5/23/1992. Defendant's counsel moved for
dismissal on the grounds that the defendant, being deceased, did not
own the property on the date of loss and could not have been properly
served. Counsel also asserted that even if the proper defendant were
to be named, the statute of limitations has run. Plaintiff opposed,
on the grounds that the individual defendant is still listed on
official records as the owner of the property and nothing put
plaintiff on notice of the death or change of ownership. And defense
counsel did not provide a death certificate to plaintiff until after
the statute of limitations expired.
The summons in this case was filed with the court on the day that the
statute of limitations would have expired (5/02/03). Under CPLR 306-
b. plaintiff had 120 days -- until 9/02/03 -- to effect service.
Service was made on the deceased's surviving spouse on 5/28/03.
Defendant served an Answer on 7/23/03 which advised plaintiff that
the defendant was deceased. Defendant moved for dismissal on
8/18/03, when there were still 2 weeks left on the 120 day period for
proper service. On 10/02/03, a month after the 120 day period
expired, plaintiff made a Motion to substitute the estate of the
deceased as defendant.
The Court held that the plaintiff should have moved, within the 120
day period, to substitute the estate as defendant. However, because
the summons was served on the deceased's surviving spouse, there is
no element of surprise or prejudice to the estate. In addition, the
spouse has preference to serve as administratrix, and is entitled to
all or half of the estate. Also notable is the fact that defendant
had not disputed the merits of the case.
Under all these circumstances, held the Court, plaintiff should, in
the interests of justice, be permitted to amend the summons and
complaint to substitute the Estate of John Mione as defendant, and be
given 30 days to serve the summons once a personal representative has
been appointed for the estate.