Substitution of a Personal Representative – Where to Make the Application

Lambert v Estren,

126 AD3d 942, ___ NYS2d ___, 2015 NY Slip Op 02454

When a party dies, but the cause of action survives (either for or against him), the action abates until a personal representative is appointed and substituted into the action. It is well settled that the death leaves me the court with no jurisdiction to determine the dispute until the substitution is made (Griffin v. Manning, 36 A.D.3d 530; Singer v. Riskin, 32 A.D.3d 839 [2d Dept.,2006])

Where a defendant has died, the plaintiff has standing to seek the appointment of a personal representative for him, if his family will not (SCPA §1002). Practical questions arise at this point. The one which presented here, and which prompts this note, is the choice of courts in which to make the application, either Surrogate’s Court or Supreme Court. Clearly, Supreme Court has coordinate jurisdiction with Surrogate’s Court, and has the power to make the appointment. On the other hand, such matters are not always as straightforward as they may seem.

In the Surrogate’s Court the petition must be supported by details of the estate and the family tree, and the court will not act until jurisdiction has been acquired over all distributees (see generally SCPA Article 10). Things are even more complicated if the decedent left a will (SCPA Article 14). It is far from clear whether or not Supreme Court will or even should import the requirements of the SCPA if it considers such an application.

Appellate Division decisions have indicated that Supreme Court need not defer to Surrogate’s Court in these matters, but have not addressed the applicability of the SCPA requirements. So, in Harding v Noble Taxi, 155 A.D.2d 265, [1st Dept., 1989], Supreme Court denied an application for the appointment of a personal representative in favor of Surrogate’s Court. The Appellate Division reversed, holding that the delays attendant on a Surrogate’s Court application militated against requiring it. Similarly, in Dieye v Royal Blue Servs., Inc., 104 A.D.3d 724, there was no need for Supreme Court to defer to Surrogate’s Court, especially since the plaintiff had agreed to limit the recovery to the amount of available insurance.

Here, the decision goes the other way. One of the defendants had died, and plaintiff moved in Supreme Court for the appointment of a temporary administrator. Supreme Court denied the application, and the Appellate Division affirmed. Plaintiff had failed to show whether any application had been made to the Surrogate’s Court, or that such an application would not be feasible. There was no evident need for haste, since the cause of action was over 20 years old and the action was still not ready for trial.

I mentioned that there are other practical issues concerning the appointment of a personal representative in the middle of an action, especially where the application must be made in the Surrogate’s Court. As noted, Surrogate’s Court practice is fraught with procedural niceties and requirements of proof which tend to be outside the experience of most litigators. Is counsel, retained to prosecute or defend the action, required to undertake this collateral application? This is especially problematic where counsel was retained on a contingent fee basis. If so, may counsel charge a separate fee for this service? Most retainer agreements do not address the issue. Who is going to pay the expenses of the application?

After the appointment of the personal representative, there are further procedural niceties regarding the actual substitution, in particular regarding notice to the personal representative and service of the motion papers upon him. (See, e.g.., Bossert v. Ford Motor Co., 140 A.D.2d 480, and Topal v. BFG Corp., 108 A.D.2d 849,  [2 Dept., 1985])