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.
Sanders v 230FA,
___ AD3d___, 2015 NY Slip Op 02107
The summons and complaint in this race-discrimination action mistakenly named Rooftop Lounge, LLC, as a defendant, instead of the correct entity, 230FA, LLC. It appears, although the brief Appellate Division opinion doesn’t explicitly say so, that the limitations period had expired before the error was noticed.
The path to correction of this error is CPLR 305 (c), which allows amendment of a summons so long as none of the defendant’s substantial rights are prejudiced. Where, as here, the proper entity has been misnamed in the summons, but has in fact been properly served with it and there is no prejudice, the misnomer may be corrected even after the limitations period has expired. The circumstances must be such that the proper entity could not have been misled by the misnomer as to who or what was actually being sued.
Where the summons and complaint were served on the wrong entity, there is no personal jurisdiction over the correct entity that will allow the correction (Ingenito v Grumman Corp., 192 AD2d 509). If the limitations period has expired, there may be no way to cure the defect. CPLR 205 (a) would not help, since no timely action was commenced against the proper defendant.
Here, the correct entity was served with the summons and complaint within the limitations period, and there was no prejudice. The amendment to reflect the defendant’s actual name was therefore properly allowed.