Vicari v. Kleinwaks

• Decision Date: 31 January 2018
• Docket Number: Index No. 5407/99,2015–02576
• Citation: 70 N.Y.S.3d 532,157 A.D.3d 975
• Parties: Natalie VICARI, et al., appellants, v. Robert J. KLEINWAKS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 975

70 N.Y.S.3d 532

Natalie VICARI, et al., appellants,

v.Robert J. KLEINWAKS, et al., respondents.

2015–02576

Index No. 5407/99

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

Argued—October 27, 2017

January 31, 2018

Bern Ripka, LLP(Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellants.

Dwyer & Taglia, New York, N.Y. (Gary J. Dwyer of counsel), for respondentRobert J. Kleinwaks.

Vincent D. McNamara, East Norwich, N.Y. (Helen M. Benzie of counsel), for Thomas V. Venice.

Kayfman Borgeest & Ryan LLP, Valhalla, N.Y. (Edward J. Guardaro, Jr., of counsel), for respondentTLC Medical Services, P.C.

Hoffman, Roth & Matlin, LLP, New York, N.Y. (William Matlin of counsel), for respondentRobert K. Health Care Management, Inc., doing business as Roslyn Health and Wellness Center.

Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Robert Devine of counsel), for respondentHadassah Orenstein.

CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for chiropractic malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated December 10, 2014, as granted the separate motions of the defendantsRobert J. Kleinwaks, TLC Medical Services, P.C., Robert K. Health Care Management, Inc., doing business as Roslyn Health and Wellness Center, and Hadassah Orenstein, and the motion purportedly made on behalf of the deceased defendantThomas V. Venice, pursuant to CPLR 1021 to dismiss the complaint in its entirety for failure to timely substitute a representative for the deceased defendantThomas V. Venice, and denied those branches of the plaintiffs' cross motion which were to appoint a representative for the deceased defendantThomas V. Venice and, upon appointment, substitute the representative for Thomas V. Venice as a defendant.

ORDERED that the appeal from so much of the order as granted the motion purportedly made on behalf of the deceased defendantThomas V. Venice is dismissed, and that portion of the order is vacated; and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the separate motions of the defendantsRobert J. Kleinwaks, TLC Medical Services, P.C., Robert K. Health Care Management, Inc., doing business as Roslyn Health and Wellness Center, and Hadassah Orenstein pursuant to CPLR 1021 to dismiss the complaint in its entirety for failure to timely substitute a representative for the deceased defendantThomas V. Venice, and substituting therefor a provision granting those separate motions only to the extent of dismissing the complaint insofar as asserted against the deceased defendantThomas V. Venice, and otherwise denying those separate motions; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

On March 11, 1999, the plaintiffs commenced this action, inter alia, to recover damages for chiropractic malpractice based on chiropractic services rendered in 1998.On February 14, 2001, the plaintiffs filed a note of issue and certificate of readiness.On June 5, 2002, the action was marked "stayed" by the Supreme Court.On January 21, 2005, the former counsel of the defendantThomas V. Venice(hereinafter the decedent), who had been retained by the decedent's insurance carrier, notified the Supreme Court and the parties that the decedent had died on March 8, 2004.Despite some belated effort by the plaintiffs' counsel, no representative of the decedent's estate has been appointed.In the order appealed from, the Supreme Court, among other things, granted the separate motions of the defendants pursuant to CPLR 1021 to dismiss the complaint in its entirety based upon the plaintiffs' failure to timely substitute a representative for the decedent, and denied those branches of the plaintiffs' cross motion which were to appoint a representative of the decedent's estate and, upon appointment, substitute the representative for the decedent as a defendant.We modify.

"The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a).Moreover, any determination rendered without such substitution will generally be deemed a nullity"( Vapnersh v. Tabak,131 A.D.3d 472, 473, 15 N.Y.S.3d 131[internal quotation marks and citations omitted] ).The death of a party terminates his or her attorney's authority to act on behalf of the deceased party(seeid. at 474, 15 N.Y.S.3d 131;Lewis v. Kessler,12 A.D.3d 421, 422, 784 N.Y.S.2d 574 ).Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any par...