SCPA 1002

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. Riskin32 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.

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