ADDITIONAL CASES S.L., An Infant By His f/n/g Richard Lucchese and Richard Lucchese, Individually, Plaintiffs v. Yi Chan Lin a/k/a Chan Yi Lin, Defendant Richard Lucchese and S.L., an infant by his f/n/g Richard Lucchese, Plaintiffs v. Mao Fan Lin, individually and as the Administrator of the Estate of Yi Chan Lin a/k/a Chan Yi Lin and Jimmy Lin, Defendants The following papers were read on these motions, numbered, via NYSCEF1 as follows: 5-19 and 22-58. Oral argument was heard on the motions in court on September 12, 2022. This is a Memorandum Decision and Order on Motion Sequences #001in Actions #1 and #2 and Motion Sequence #002, filed in connection with Action #3. Statement of Facts Action #1 was commenced on behalf of Plaintiff Richard Lucchese, a person over the age of 18 years, against Chan Yi by the filing of a Summons and Complaint by his first attorney Orin Cohen, Esq. on February 16, 2018. Action #2 was commenced on behalf of S.L., an infant by his f/n/g Richard Lucchese on April 24, 2016, and S.L. on July 16, 2016, while they were residing in an apartment located at 694 Bay Street, Staten Island, New York (694 Bay Street), a building owned by Chan Yi. Chan Yi, Defendant in Actions #1 and #2 died on January 9, 2018, more than one month before the Complaints were filed in these Actions. Plaintiffs filed Affidavits of Service in Actions #1 and #2 stating that Chan Yi was personally served with the Complaints in those actions on February 28, 2018, almost two months after Chan Yi died. Plaintiffs’ then attorney Orin Cohen, Esq. was notified by Defendant’s counsel by letter dated April 5, 2018, that Actions #1 and #2 were defective, as Chan Yi was deceased. Plaintiffs then abandoned Actions #1 and #2 as confirmed by their counsel in a letter dated May 23, 2018. Mao Fan Lin and Jimmy Lin, defendants in Action #3 were not defendants in Actions #1 and #2. The Complaints in Actions #1 and #2 contained no allegations that Mao Fan Lin and Jimmy Lin were liable or responsible for Plaintiff’s injuries. Although Daniel Shimko, Esq. has never been formally substituted via Consent to Change Attorney Affidavit, he has appeared in Actions #1 and #2 on behalf of Plaintiffs, and has filed Opposition to Defendant’s Motion Sequence #001, and has operated and conducted himself as counsel of record with respect to those actions, filing Affirmations, and Affidavits of Plaintiffs. On or about July 18, 2018, Mao Fan Lin was appointed Voluntary Administrator of Chan Yi’s estate, in a Small Estate proceeding commenced under SCPA Article 13, with sole authority to collect the sum of $728.19 balance in an HSBC bank account in or about July 2018. Mao Fan Lin’s appointment as Voluntary Administrator of Chan Yi’s estate in July 2018 was a matter of public record in files maintained by the Richmond County Surrogate’s Court. Action #3 was commenced by Summons and Complaint filed by Plaintiff’s new attorney Daniel Shimko, Esq. on March 8, 2022. Actions #1 and #2 were never discontinued. Plaintiff’s claims in Action #3 are based upon the exact same personal injuries that Plaintiff Richard Lucchese alleges to have sustained on April 24, 2016, in Action #1 as well as those claimed to have been sustained by S.L. (alleged to be an infant) on July 16, 2016 in Action #2. The Complaint in Action #3 for the first time asserts against Mao Fan Lin and Jimmy Lin the very same personal injury claims alleged in Actions #1 and #2 and adds new fraudulent conveyance of real property claims which were not asserted in Actions #1 and #2. Plaintiff’s fraudulent conveyance claims in Action #3 concern transfers of real property by Chan Yi Lin made prior to the commencement of Actions #1 and #2. In Motion Sequence #001(in common with Actions #1, #2, and #3) Defendants Mao Fan Lin, individually as the Administrator of the Estate of Yi Chan Lin a/k/a Chan Yi Lin and Jimmy Lin seek an Order dismissing Plaintiff’s Complaint: [a] pursuant to CPLR §(a) (8) on the grounds that the Court does not have jurisdiction of the person of the defendants; [b] pursuant to CPLR Section 3211(a)(4) on the grounds that there is another action pending; and/or [c] pursuant to CPLR §3211 (a) (5) on the grounds that Plaintiffs’ claims against defendants are time-barred by the applicable statute of limitations; and [d] for such other and further relief as the Court may deem just and proper under the circumstances. Plaintiff opposes the motion in its entirety. In Motion Sequence #002 (Cross-Motion) (pertaining to Action #3), Plaintiff seeks the following relief, for an Order [a] Consolidating actions pending under Richmond County Index Nos. 150385/2018, 150387/2018, and 150419/2022; [b] Substituting the administrator Mao Fan Lin in place of the decedent Yi Chan Lin a/k/a Chan Yi Lin; [c] Extending Plaintiff’s time to serve process on the Defendants in actions pending under Richmond County Index Nos. 150385/2018, 150387/2018 and 150419/2022 and [d] Granting such other and further relief as this Court may deem just and proper. Defendants oppose the motion in its entirety. Discussion I. Plaintiff’s Motion for Substitution of an Administrator The Defendant in Actions #1 and #2 are the same party, to wit: Yi Chan Lin a/k/a Chan Yi Lin. In its review of Action #3 and Motion Sequence #1 filed in that action, this Court examined a New York City Department of Health Death Transcript ostensibly proffered as proof that Yi Chan Lin a/k/a Chan Yi Lin died on January 9, 2018. This Court takes judicial notice for the purposes of Actions #1, #2, and #3 that Yi Chan Lin a/k/a Chan Yi Lin died on January 9, 2018. Although not raised by the parties, there is an issue, as to whether [1] Mao Fan Lin may appear in any action as the Voluntary Administrator of the Estate of Yi Chan Lin a/k/a Chan Yi Lin, pursuant to SCPA Article 13, and [2] whether service upon Mao Fan Lin as voluntary administrator constitutes service upon the estate. Mao Fan Lin was provided with a certificate by the Richmond County Surrogate’s Court appointing her as voluntary administrator on or about July 18, 2018. As a consequence of this appointment, she was vested with all the powers, with respect to the personal property of the decedent, as a duly appointed administrator, with the exception of those powers specifically enumerated in SCPA §§1306(1), (3), to wit, (1) the power to enforce a claim for the wrongful death of the decedent, (2) the power to enforce a claim for personal injuries to the decedent, and (3) the power to maintain an action or proceeding to recover or compel the delivery of property, or to enforce a contractual or quasi-contractual claim owned by the decedent in excess of [$30,000.00] (the limits at the time of the appointment in 2018) (See Matter of Essenberg, 120 Misc 2d 993 [Surrogate's Court Suffolk Co 1983]). In Action #1 the Wherefore clause of Plaintiff’s Complaint seeks judgment against the defendant in a sum which “exceeds the jurisdictional limits of the lower Courts of the State of New York, together with costs and disbursements in this action.” In Action #2 the Wherefore clause of Plaintiff’s Complaint seeks judgment against the defendant in a sum which “exceeds the jurisdictional limits of the lower Courts of the State of New York, together with costs and disbursements in this action.” In Action #3 the Wherefore clause of Plaintiff’s Complaint seeks judgment against the defendants, jointly or severally “in an amount exceeding the minimum jurisdictional limit, plus costs and fees to the extent permitted under the law.” The jurisdictional limits of the “lower courts” (a term commonly, however, improperly used to denote the NYC Civil Court and the NYS County Courts) are $50,000.002 and $25,000.00, respectively. Each of the Plaintiff’s Actions fail against Mao Fan Lin, as Administrator of the Estate of Yi Chan Lin a/k/a Chan Yi Lin as the claims surpass the jurisdictional limits of a voluntary administrator. The voluntary administrator is a fiduciary, albeit a restricted one. The voluntary administrator has the powers, rights, and duties of an administrator vis à vis the decedent’s personal property. She can settle claims against the estate up to $30,000 (EPTL 11-1.1(b)(13); See Matter of Essenberg, 120 Misc 2d 993 [Surrogate's Court, Suffolk Co 1983] (voluntary administrator settled action by plaintiff against estate stemming from injuries caused by decedent). She cannot, however, enforce a claim for the decedent’s wrongful death or personal injury. Otherwise, subparagraph (3) makes a voluntary administrator the fiduciary of the estate until another fiduciary takes over. The Second Department has maintained that service of process upon a Voluntary Administrator does not constitute service upon the estate (See US Bank Trust, NA v. Gedeon, 181 AD3d 745 [2d Dept 2020]) (Mortgagee’s service of summons and foreclosure complaint upon Voluntary Administrator of estate of mortgagor, who died intestate, did not constitute service upon the estate of mortgagor). Therefore, Plaintiff has failed to exercise jurisdiction over Yi Chan Lin a/k/a Chan Yi Lin in Actions #1, #2, and #3. Plaintiff’s motion papers do not provide any legal authority entitling them to substitution of the Administrator herein. CPLR §1015[a] provides in relevant part as follows: “If a party dies and the claim for or against him is not thereby extinguished the court shall order proper substitution by the parties ” Here, Yi Chan Lin a/k/a Chan Yi Lin died on January 9, 2018 more than one month prior to when Actions #1 and #2 were commenced on February 16, 2018 and therefore was never a “ party” to those actions (Fed. Nat’l Mortg Ass’n v. Tudor, 185 AD3d 905 [2d Dept 2020]; Wendover Fin Servs v. Ridgeway, 93 AD3d 1156, 1157 [4 Dept 2012]; Marte v. Graber, 58 AD3d 1 [1 Dept 2008]; Everhome Mortgage Co v. Sirignano, 40 Misc 3d 1223 [A] [Suffolk Co Sup Ct 2013]. Substitution for a decedent under CPLR §§1015[a] and 1021 provides for the procedure to substitute for a deceased party. The CPLR presupposes that the action was commenced by a living person against a living defendant (Matter of Foreclosure of Tax Liens, 165 AD3d 1112, 1116 [2d Dept 2018]; Vello v. Liga Chillean de Futbol, 148 AD3d 593, 593-594 [1 Dept 2017]; JP Morgan Chase NA v. Charles, 46 Misc 3d 1216[A] [Sup Ct Kings Co 2015]). The requirement that a decedent must have been alive when an action was commenced is consistent with the well settled principle that a dead person is a “legal nullity” (Jordan v. City of New York, 23 AD3d 436, 437 [2d Dept 2005]; Krysa v. Estate of Qyra, 136 AD3d 760 [2d Dept 2016]; Citigroup Global Mkts Realty Corp v. LaGreca, 167 AD3d 842 [2d Dept 2018]; US Bank NA v. Cadeumag, 147 AD3d 881 [2d Dept 2017]; Dime Savings Bank of NY v. Luna, 302 AD2d 558 [2d Dept 2003]; cf: HSBC Bank USA v. Ungar Family Realty Corp, 11 AD3d 673, 673-674 [2d Dept 2013]). It is clear to this Court that Plaintiffs and their counsel have been aware that Yi Chan Lin a/k/a Chan Yi Lin died in January 2018 as early as April 2018 when Defendant’s counsel sent correspondence to Plaintiff’s first attorney indicating same. Four years have elapsed since that correspondence. Plaintiff’s delay in seeking substitution is inexcusable, and may not be countenanced, (See Rosenblatt v. Doe, 172 AD3d 936, 937 [2d Dept 2019]; Mingo v. Nobandegani, 74 AD3d 888 [2d Dept 2019]) and therefore the motion for substitution of the administrator is DENIED with prejudice. II. Plaintiff’s Motion to Consolidate Actions #1, #2, and #3 Actions #1, #2, and #3 were commenced against Yi Chan Lin a/k/a Chan Yi Lin after he died. The Affidavit of Service has no credibility with this Court. The NYC Department of Health Death Transcript proves that service upon Yi Chan Lin was an impossibility, notwithstanding two separate Affidavits of Service in Actions #1 and #2 respectively. There is no jurisdiction over Yi Chan Lin or the Voluntary Administrator of the Small Estate. The Plaintiffs cannot use Action #3 to vindicate the abandoned actions (Actions #1 and Action #2), which claims have ceased to be viable, as the stature of limitations has long tolled. Notwithstanding the foregoing, consolidation cannot be granted as [1] the parties and the claims in the various actions are dissimilar, [2] consolidation would be prejudicial to Mao Fan Lin and Jimmy Lin’s defense of the “would be” consolidated claims, and [3] despite the common issue of fact shared by the actions, under all the circumstances, the issues and applicable legal principles in the respective actions are so dissimilar (see, Gouldsbury v. Dan’s Supreme Supermarket, 138 AD2d 675 [2d Dept 1988]), and the trial may prove so unwieldy, that consolidation or a joint trial will result in jury confusion and prejudice the right of the appealing parties to a fair trial (see, Brown v. Brooklyn Union Gas Co, 137 AD2d 479 [2d Dept 1988]). Therefore, Plaintiff’s motion to consolidated Actions #1, #2, and #3 is DENIED with prejudice. III. Plaintiff’s Motion to Extend time to Answer A motion to extend time to serve process is governed by CPLR §306-b, which provides in relevant part as follows: “If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service ” An extension of time pursuant to CPLR 306 — b may be granted in the interest of justice without a showing of “ reasonably diligent efforts at service as a threshold matter” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). However, in this case, the plaintiffs, as part of a pattern of an extreme lack of diligence, and without any justification, failed to move for an extension of time for four years under Action #1 and Action #2, and now comes to this court without personal service on any party in Action #3 (see Riccio v. Ghulam, 29 AD3d 558 [2d Dept 2006]). Under all the circumstances of this case, granting the plaintiffs an extension of time pursuant to CPLR §306 — b would be an improvident exercise of discretion, and therefore Plaintiff’s motion to extend time to serve process on defendants in Actions #1, #2, and #3 is DENIED with prejudice. IV. Defendant’s Motion to Dismiss Actions #1 and #2 Defendants Mao Fan Lin, individually as the Administrator of the Estate of Yi Chan Lin a/k/a Chan Yi Lin and Jimmy Lin seek an Order dismissing Plaintiff’s Complaint: [a] pursuant to CPLR §3211 (a) (8) on the grounds that the Court does not have jurisdiction of the person of the defendants; [b] pursuant to CPLR Section 3211(a)(4) on the grounds that there is another action pending; and/or [c] pursuant to CPLR §3211 (a) (5) on the grounds that Plaintiffs’ claims against defendants are time-barred by the applicable statute of limitations; and [d] for such other and further relief as the Court may deem just and proper under the circumstances “A party moving for a CPLR 3211 dismissal may argue more than one ground in the papers, directed at the same cause or causes of action. Perhaps best illustrating the point is Monaco v. Van Meerendonk, 190 AD3d 968 [2d Dept 2021]). In Monaco, the plaintiff’s cause of action for fraud was dismissed by the court because it was not adequately pleaded and was time-barred under the applicable statute of limitations, and was precluded by the res judicata doctrine, and was barred by a prior settlement and release. In other words, the meat was turned over on the grill multiple times to assure that the result was well done. Different grounds also may be argued as to different causes of action” (McKinney’s CPLR Rule 3211, Practice Commentaries, Editors Notes, Hon. Mark C. Dillon). One must distinguish between the point during the litigation when a CPLR 3211(a) motion may be made and the point during the litigation when one of the defenses listed in CPLR 3211(a) must be raised (whether by motion or otherwise). A motion to dismiss under CPLR §3211(a) must be made “before service of the responsive pleading is required.” CPLR §3211(e). Only one CPLR 3211(a) motion is permitted. CPLR 3211(e) (See, generally, Practice Commentary 3211:55 under CPLR 3211 in McKinney’s Consolidated Laws of New York, Book 7B; Siegel, New York Practice (4th ed.) §§272 to 273). Therefore, a CPLR 3211(a) motion to dismiss a cause of action in the complaint (or the complaint as a whole) must be made by the defendant before Defendants’ answer is due. Defendants have satisfied the requirements in Action #1 and Action #2. There is precedent for the Voluntary Administrator of a Small Estate to settle, compromise, or dispute claims, without petitioning the Surrogate’s Court for full Letters of Administration. Regarding the ability of the Voluntary Administrator to settle and compromise a claim by a third party against the decedent’s estate, SCPA 1306 does not set forth any specific limitations. The court is, therefore, directed in its decision by the provisions of EPTL 11-1.1, dealing with fiduciaries’ powers in general, and SCPA 1813, dealing with the compromise of disputed claims against an estate. (See SCPA 1306, subd 3.) EPTL 11-1.1 (subd [b], par [13]) grants the administrator of an estate the power “[t]o contest, compromise or otherwise settle any claim in favor of third persons and against the estate” without first seeking court approval (Matter of Rappaport, 102 Misc 2d 910 [Surrogate's Court Nassau Co 1980]). SCPA 1813 prescribes a procedure for seeking judicial approval of a proposed compromise of a claim, but its provisions are not mandatory. (Powers, Practice Commentary, McKinney’s Cons Laws of NY, Book 58A, SCPA 1813, p 253.) In the absence of any specific statutory authority to the contrary, this court finds that the Voluntary Administrator Yi Chan Li’s estate has the power to bring the instant CPLR 3211 motions to dismiss, without first obtaining judicial approval or full letters of administration from the Surrogate’s Court. Accordingly, based upon the foregoing, Defendant’s motion to dismiss Actions # 1 and #2 bearing Index Nos. 150385/2018 and 150387/2018, respectively, is GRANTED with prejudice. V. Defendant’s Motion to Dismiss Action #3 As to Action #3, Plaintiffs admit that they have not been able to serve Mao Fan Lin (by filing an Affidavit of Non-Service), and that they failed to effectuate personal service upon Jimmy Lin (they filed an Affidavit of Substituted Service). Defendants contend that they were not properly served and moved the court pursuant to CPLR 32113. However, this court notes that all motions under CPLR 3211 are to be made “[a]t any time before service of the responsive pleading” (CPLR 3211[e] ), except that CPLR 3211 motions may be made after service of the party’s answer in three circumstances: when the motion is based upon subdivision (a)(2) subject matter jurisdiction, (a)(7) failure to state a cause of action, or (a) (10) nonjoinder of a necessary party (see CPLR 3211[e]). Here, Defendant’s filed an Answer on April 27, 2022, and then filed their motion on June 8, 2022, seeking dismissal of the complaints pursuant to CPLR 3211(a)(2), CPLR 3211 (a)(7) and CPLR 3211 (a)(10), and its post-answer timing does not necessarily or definitionally transform it into a motion for summary judgment. Therefore, notwithstanding the blaring jurisdictional issues, this Court is without authority to sua sponte convert the motion to a summary judgment motion, as the Second Department has repeatedly maintained. Moreover, The Appellate Division has consistently held that the court’s power to dismiss a complaint sua sponte is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal (e.g. Deutsche Bank Natl Trust Co v. Winslow, 180 AD3d 1000 [2 Dept 2020]; JP Morgan Chase Bank, NA v. Laszlo, 169 AD3d 885 [2 Dept 2019]; One West Bank, FSB v. Fernandez, 112 AD3d 681 [2 Dept 2013]; HSBC Bank USA NA v. Taher, 104 AD3d 815 [2 Dept 2013]; US Bank NA v. Emmanuel, 83 AD3d 1047 [2 Dept 2011]). “There has been no equivocation of that rule on the part of the Appellate Division. Nor does the rule engender ambiguity. The reason that sua sponte dismissals should occur sparingly, and only where there are extraordinary circumstances for doing so, is that a sua sponte dismissal of a complaint deprives the plaintiff of basic due process to which that party is entitled-notice, and an opportunity to be heard” (McKinney’s CPLR Rule 3211, Practice Commentaries, Editors Notes, Hon. Mark C. Dillon). Although it may seem academic, costly, and wasteful of time and judicial economy, this Court must deny Defendant’s motion to dismiss Action #3, on this procedural basis. The overarching importance of the preservation of due process, far exceeds the inconvenience, cost, and delay that comes with additional motion practice. Accordingly, Defendants’ motion to dismiss Action #3 is DENIED. VI. Decretal Paragraphs It is hereby ORDERED that Defendant’s motion to dismiss Action #1 bearing Index No.: 150385/2018 is GRANTED, and it is further, ORDERED, that Defendant’s motion to dismiss Action #2 bearing Index No.: 150387/2018 is GRANTED, and it is further, ORDERED, that Defendant’s motion to dismiss Action #3 bearing Index No.: 150419/2022 is DENIED without prejudice to renew, and it is further, ORDERED, that Plaintiffs cross-motion to Consolidate under Action #3, bearing Index No: 150419/2022 is DENIED with prejudice, and it is further, ORDERED, that Plaintiff’s cross-motion to Substitute the Administrator under Action #3, bearing Index No: 150419/2022 is DENIED with prejudice, and it is further, ORDERED, that Plaintiff’s cross-motion to extend time to serve process under Action #3, bearing Index No: 150419/2022 is DENIED with prejudice, and it is further, ORDERED, that the clerk of the court shall enter judgment accordingly. Any relief requested and not specifically addressed herein, is denied without prejudice to renew. Dated: September 19, 2022
