Robinson v. Kathleen B.

• Decision Date: 09 July 2021
• Docket Number: 1064,CA 20-00103
• Citation: 196 A.D.3d 1074,151 N.Y.S.3d 574
• Parties: In the Matter of Edward C. ROBINSON, Esq., as Temporary Guardian of the Property of Josephine T.B., Petitioner-Respondent, v. KATHLEEN B., Respondent-Appellant, and Carmen B., Respondent.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 1074

151 N.Y.S.3d 574

In the Matter of Edward C. ROBINSON, Esq., as Temporary Guardian of the Property of Josephine T.B., Petitioner-Respondent,

v. KATHLEEN B., Respondent-Appellant,andCarmen B., Respondent.

1064

CA 20-00103

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 9, 2021

LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (TESSA R. SCOTT OF COUNSEL), FOR RESPONDENT-APPELLANT.

DOMINICA P., RESPONDENT PRO SE.

PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by substituting Dominica P., as executrix of the estate of Josephine T.B., for Edward C. Robinson, Esq., as temporary guardian of the property of Josephine T.B., as the petitioner in this proceeding, and as modified the order is affirmed without costs.

Memorandum: While serving as the temporary property guardian for Josephine T.B., petitioner (hereafter, guardian) filed a turnover petition that sought, inter alia, to compel respondents to return a sum of money that allegedly belonged to Josephine (see Mental Hygiene Law § 81.43 ). Following a hearing at which respondents did not appear, Supreme Court granted the petition, directed respondents to deliver $100,760.12 to the guardian, and entered judgment jointly and severally against both respondents for that sum. Respondent Kathleen B. subsequently moved to vacate, inter alia, the court's order and judgment against her for lack of personal jurisdiction (see CPLR 5015 [a] [4] ). The court denied Kathleen's motion to vacate, and she now appeals from that order.

We note at the outset that, in the order appealed from, the court erroneously used the caption from a prior proceeding concerning the appointment of Josephine's guardian, and we therefore amend the caption to reflect the names of the parties and the nature of this proceeding at its inception (see generally Boyd v. Town of N. Elba , 28 A.D.3d 929, 930, 813 N.Y.S.2d 247 n [3d Dept. 2006], lv dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 545, 853 N.E.2d 1113 [2006] ; Nappi v. Nappi , 181 A.D.2d 1067, 1068, 581 N.Y.S.2d 969 [4th Dept. 1992] ).

We must next address another minor technical issue that the parties did not raise either in the motion court or on appeal. Josephine died at some point before the entry of the order on appeal, and the executrix of her estate, Dominica P., was never formally substituted as the petitioner in this proceeding. There is no dispute, however, that Dominica was properly served with Kathleen's motion to vacate, and Dominica never objected to adjudicating Kathleen's motion in the absence of a formal substitution order. To the contrary, Dominica—acting in her capacity as the executrix of Josephine's estate—appeared and successfully opposed Kathleen's motion on the merits. Dominica likewise appeared in this Court to oppose Kathleen's appeal. Because Dominica appeared and actively litigated Kathleen's motion on the merits, it is well established that any "defect in failing to first effect substitution was a mere irregularity" ( Wichlenski v. Wichlenski , 67 A.D.2d 944, 946, 413 N.Y.S.2d 211 [2d Dept. 1979] ; see Matter of Panchame v. Staples, Inc. , 178 A.D.3d 1174, 1176 n., 115 N.Y.S.3d 157 [3d Dept. 2019] ; Aziz v. City of New York , 130 A.D.3d 451, 452, 13 N.Y.S.3d 64 [1st Dept. 2015]; Matter of Sills v. Fleet Natl. Bank , 81 A.D.3d 1422, 1423, 917 N.Y.S.2d 484 [4th Dept. 2011] ). Moreover, to formally correct this irregularity, we now modify the order by substituting Dominica as the petitioner in this proceeding (see CPLR 2001 ; Matter of Barone v. Dufficy , 186 A.D.3d 1358, 1359-1360, 128 N.Y.S.3d 891 [2d Dept. 2020] ; Durrant v. Kelly , 186 A.D.2d 237, 237-238, 588 N.Y.S.2d 196 [2d Dept. 1992], appeal dismissed 81 N.Y.2d 758, 594 N.Y.S.2d 717, 610 N.E.2d 390 [1992] ; Wichlenski , 67 A.D.2d at 946, 413 N.Y.S.2d 211 ; see also Aziz , 130 A.D.3d at 452, 13 N.Y.S.3d 64 ).

Our dissenting colleagues would dismiss the appeal under these circumstances. We respectfully disagree. It is true, as the dissent notes, that a legal ruling made after the death of a party and without proper substitution "will generally be deemed a nullity" ( Vapnersh v. Tabak , 131 A.D.3d 472, 473, 15 N.Y.S.3d 131 [2d Dept. 2015] [emphasis added and internal quotation marks omitted]). As we noted above, however, all four Departments of the Appellate Division have recognized that the "general[ ]" rule articulated in Vapnersh does not apply when, as here, the decedent's proper successor appears and actively litigates on behalf of the decedent's interests (see Panchame , 178 A.D.3d at 1176 n., 115 N.Y.S.3d 157 ; Aziz , 130 A.D.3d at 452, 13 N.Y.S.3d 64 ; Sills , 81 A.D.3d at 1423, 917 N.Y.S.2d 484 ; Wichlenski , 67 A.D.2d at 946, 413 N.Y.S.2d 211 ). The foregoing exception—which fits this case perfectly—allows a court to acknowledge and ratify a de facto substitution that already occurred. Notably, the cases upon which the dissent relies did not feature active litigation by the decedent's proper successor, and the dissent does not explain its unwillingness to apply the de facto substitution exception here.

As to the merits of this appeal, we agree with Kathleen that all three of the court's rationales for denying her motion to vacate were erroneous. First, contrary to the court's determination, the substantive merit of the guardian's turnover petition could not, standing alone, confer personal jurisdiction over Kathleen. As the United States Supreme Court once observed, "[t]he question of jurisdiction of course precedes any inquiry into the merits" ( Oregon v. Hitchcock , 202 U.S. 60, 68, 26 S.Ct. 568, 50 L.Ed. 935 [1906] [emphasis added]).

Second, even if a person could theoretically consent to personal jurisdiction by the mere act of sending a letter about the case to opposing counsel (compare Matter of Kimball , 155 N.Y. 62, 69-71, 49 N.E. 331 [1898] with Cohen v. Ryan , 34 A.D.2d 789, 789-790, 311 N.Y.S.2d 644 [2d Dept. 1970] ), it is well established that such a letter will not be deemed to consent to personal jurisdiction so long as it makes such a jurisdictional objection among its points (see Matter of Katz , 81 A.D.2d 145, 147-149, 439 N.Y.S.2d 941 [2d Dept. 1981], affd for reasons stated 55 N.Y.2d 904, 449 N.Y.S.2d 29, 433 N.E.2d 1277 [1982] ; Matter of Sessa v. Board of Assessors of Town of N. Elba , 46 A.D.3d 1163, 1166, 847 N.Y.S.2d 765 [3d Dept. 2007] ; Matter of Hauger v. Hauger , 275 A.D.2d 953, 954, 713 N.Y.S.2d 425 [4th Dept. 2000] ). Thus, contrary to the court's determination, Kathleen's pre-hearing letter to the guardian did not consent to personal jurisdiction because the letter explicitly objected to exercising personal jurisdiction over her in this proceeding (see Katz , 81 A.D.2d at 149, 439 N.Y.S.2d 941 ).

Third, and contrary to the court's final determination, Kathleen's alleged appearance in a separate criminal action arising from the same underlying facts is irrelevant to the existence of personal jurisdiction over her in this Mental Hygiene Law § 81.43 turnover proceeding. It is well established that a party's "position in a different case, in a different forum, with different [opponents] ... has no bearing on whether personal jurisdiction exists over [that party] in this case" ( Dumler v. Wright Med. Tech., Inc. , 2018 WL 576848, *8 [N.D. Iowa, Jan. 26, 2018, No. C71-2033-LTS] ; see Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria , 937 F.2d 44, 50 n. 5 [2d Cir. 1991] ; Pinto-Thomaz v. Cusi , 2015 WL 7571833, *6 [S.D. N.Y., Nov. 24, 2015, 15-cv-1993 (PKC)]). Indeed, we "know[ ] of no authority for the assertion that personal jurisdiction over a [party] in one case confers personal jurisdiction over the [party] in a separate case" ( Kim v. Magnotta , 49 Conn. App. 203, 210, 714 A.2d 38, 42 [1998], revd on other grounds 249 Conn. 94, 733 A.2d 809 [1999] ).

Despite the court's erroneous analysis, the denial of Kathleen's motion to vacate was nevertheless proper because it lacked merit (see generally PNC Bank, N.A. v. Steinhardt , 159 A.D.3d 999, 1000, 74 N.Y.S.3d 62 [2d Dept. 2018] ; Caracaus v. Conifer Cent. Sq. Assoc. , 158 A.D.3d 63, 74, 68 N.Y.S.3d 225 [4th Dept. 2017] ). First, Kathleen argues that the court lacked jurisdiction over her in the turnover proceeding because the notice of petition and petition did not name her as a respondent thereto. That contention is factually incorrect; Kathleen was explicitly named as a respondent to the proceeding within the body of both the notice of petition and the petition (cf. Matter of Loretta I. , 34 A.D.3d 480, 482, 824 N.Y.S.2d 372 [2d Dept. 2006] ). Although Kathleen's name was not included in the caption of either pleading, that omission was a mere irregularity that did not prejudice her (see CPLR 2001 ; Weiss v. Markel , 110 A.D.3d 869, 871, 973 N.Y.S.2d 318 [2d Dept. 2013] ; Matter of Theresa BB. v. Ryan DD. , 64 A.D.3d 977, 977 n., 882 N.Y.S.2d 580 [3d Dept. 2009], lv denied 13 N.Y.3d 707, 2009 WL 2998205 [2009] ; see also Martin v. Witkowski , 158 A.D.3d 131, 139, 68 N.Y.S.3d 603 [4th Dept. 2017] ; see generally Matter of Great E. Mall, Inc. v. Condon , 36 N.Y.2d 544, 549, 369 N.Y.S.2d 672, 330 N.E.2d 628 [1975] ).

Second, Kathleen contends that the court lacked personal jurisdiction over her in the turnover proceeding because she was never served with the underlying notice of petition and petition.

Kathleen's affidavit in support of her motion to vacate, however, did not deny service of those pleadings. Although Kathleen's attorney asserted in various submissions that Kathleen had not been served, the attorney's claim was not made on personal knowledge and was therefore inadmissible (see e.g. Dae Hyun Chung v. Google, Inc. , 153 A.D.3d 494, 495, 59 N.Y.S.3d 465 [2d Dept. 2017] ). Given Kathleen's failure to "submit an affidavit from one with personal knowledge denying...