DECISION & ORDER In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with plaintiff LISA ANN FAHEY’s (“Plaintiff’s”) motion (Seq. No. 4) seeking an order, pursuant to CPLR §2221, granting her leave to renew that part of this Court’s decision on Motion Sequence 3, dated December 11, 2020, and entered on January 7, 2021 (the Prior Decision), that denied Plaintiff’s cross-motion (Seq. No. 3) for an order appointing the Law Office of Thomas K. Moore (the “Moore Firm”) as guardians to serve as temporary Administrator for the deceased defendant PAUL A. ZISSIS (“Zissis”), substituting said Administrator in place of Zissis, and lifting the stay currently in place in this action due to Zissis’s death, and, upon renewal (Seq. No. 4), vacating that part of the Prior Decision that denied Plaintiff’s cross-motion and, upon vacatur, granting the prior cross-motion. Oral argument on the motion was held before the Court virtually via Microsoft Teams on February 14, 2023. In this action, Plaintiff seeks compensation for alleged personal injuries suffered during a multi-vehicle accident that occurred on February 20, 2015, on southbound Bruckner Expressway in Bronx County, New York. Plaintiff’s vehicle was allegedly struck by Zissis’s vehicle as it was merging into Plaintiff’s lane, causing Plaintiff’s vehicle to strike the median and rebound off of it only to be struck again by defendant JOHN MILLER’s vehicle. According to defendant Zissis’s death certificate, he died on October 26, 2017, in the State of Connecticut. (NYSCEF Doc. 38) Three years later, on September 11, 2020, the Moore Firm, which has represented Zissis in this action on behalf of his insurance carrier, moved by order to show cause to dismiss the Complaint pursuant to CPLR §1021 on the ground that Plaintiff had unreasonably delayed in substituting an appropriate party for defendant Zissis. (Id. Doc. 35; Mot. Seq. No. 3) Plaintiff cross-moved on December 3, 2020, for an order granting the relief that Plaintiff now seeks again in the instant motion. (Id. Doc. 48) Both the motion and the cross-motion were denied by the Prior Decision.1 (Id. Doc. 55) As to the cross-motion, the Prior Decision held that “Supreme Court should generally defer the appointment of an administrator to the expertise of the Surrogate’s Court where, as here, the matter is not trial ready.” (Id. (citing Harding v. Noble Taxi Corp., 155 A.D.2d 265 (1st Dep’t 1989); Ganthier v. Kurtz, 28 Misc. 3d 1219(A) (N.Y. Sup. Ct. Queens Cty. 2010); Jones v. Vetter, 188 Misc. 2d 475 (N.Y. Sup. Ct. Nassau Cty. 2001)) CPLR 2221(e) provides that a motion for leave to renew “shall be based upon new facts not offered on the prior motion” and “shall contain reasonable justification for the failure to present such facts on the prior motion.” “Renewal…is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Acevedo v. Nurmamatov, 206 A.D.3d 488, 488 (1st Dep’t 2022) (internal quotation marks and citation omitted). Here, Plaintiff offers new facts through the affidavit of Nella Molinini, an employee of Plaintiff’s counsel’s office. (NYSCEF Doc. 63) According to Ms. Molinini, after the Prior Decision was issued, she was tasked with initiating a proceeding in the Bronx County Surrogate’s Court for the appointment of an administrator for defendant Zissis’s estate. The original copy of Zissis’s death certificate was required, and obtaining the original copy from the State of Connecticut Department of Health proved to be laborious and time-consuming. Nevertheless, after several attempts, Ms. Molinini was able to obtain the original death certificate. Thereafter, Ms. Molinini contacted the Bronx Public Administrator’s Office and was informed that, despite this action pending in Bronx County, Bronx County was not the appropriate venue for the application because defendant Zissis was a resident of Connecticut and died there. Hence, the proceeding instead needed to be commenced in Connecticut. Upon contacting the Probate Court in Hartford, Connecticut, Ms. Molinini was informed that Connecticut does not have a Public Administrator for surrogate proceedings and that Plaintiff’s counsel would need to: “file directly in Probate Court in Connecticut…, notify the decedent’s family[,] and[,] if the court approved the matter, [obtain] Letters of Administration from Connecticut, then…commence a proceeding with the Bronx Surrogate’s Court to give authority to whomever was designated as Administrator of the Estate of Paul A. Zissis in Probate Court in Connecticut, to appear in the Bronx action”. (Id. 10) In his affirmation, Plaintiff’s counsel also adds that no attorney in his office is admitted to practice in Connecticut, so it would be necessary to hire outside counsel to pursue an application in the Connecticut Probate Court. (Id. Doc. 60, 12) Based on these facts, which were not and could not have been before the Court when the Prior Decision was issued, Plaintiff argues that the Court should exercise its jurisdiction to appoint a temporary administrator for defendant Zissis’s estate so that Plaintiff can avoid the “tedious and time-consuming process described above.” (Id. 13) Plaintiff further argues that appointment of the Moore Firm is appropriate because it has represented defendant Zissis since the inception of this case, the Moore Firm’s temporary administration would be strictly limited to only those acts necessary to the defense of this action, and Plaintiff is voluntarily limiting any monetary recovery that he may have against Zissis’s estate to the amount of the insurance policy. (Id. 22; id. Doc. 58 (stipulating to limit Plaintiff’s recovery to insurance policy)) The Moore Firm resists its appointment as temporary administrator of defendant Zissis’s estate and, accordingly, makes a number of arguments in opposition to the motion. First, the Moore Firm argues that Plaintiff does not allege any new facts that would change the prior determination, as allegedly required by CPLR 2221(e), because, in any event, the case is still not trial ready. Second, the Moore Firm argues that, under Surrogate’s Court Procedure Act (“SCPA”) §1001(1), it is not a proper party to receive letters of administration. Rather, according to the Moore Firm, Plaintiff must first look to defendant Zissis’s family, in the order of priority listed in SCPA §1001(1). Third, the Moore Firm argues that it cannot be appointed administrator under SCPA §707, which provides that “[l]etters may issue to a natural person or to a person authorized by law to be a fiduciary,” because the Moore Firm is not a “natural person.” Finally, the Moore Firm argues that it cannot be appointed administrator because it was hired by Zissis’s insurance carrier, Traveler’s Insurance Company (“Traveler’s”), and thus its “relationship differs from other attorney-client relationships.” (NYSCEF Doc. 66, 12) “The death of a party divests a court of jurisdiction until a proper substitution has been made.” Harding, 155 A.D.2d at 255. Any party to an action may make a motion for substitution. CPLR §1021. “In most instances the personal representative of the decedent’s estate should be substituted in the action.” Laroche v. Laroche, 162 A.D.3d 1000, 1001 (2d Dep’t 2018) (citation omitted) CPLR §§1015(a) and 1021 “do not require [the party seeking appointment of a temporary administrator] to proceed in the Surrogate’s Court.” Harding, 155 A.D.2d at 266. Rather, “[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and [it] may do so to avoid delay and prejudice in a pending action.” Dieye v. Royal Blue Servs., Inc., 104 A.D.3d 724, 726 (2d Dep’t 2013) (citing Harding, 155 A.D.2d at 266). “The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court.” Laroche, 162 A.D.3d at 1001 (citing Rosenfeld v. Hotel Corp. of Am., 20 N.Y.2d 25 (1967)). The Moore Firm’s first argument in opposition to the motion is premised on the proposition that it is appropriate for the Supreme Court to exercise its discretion to appoint a temporary administrator only where a case is otherwise trial ready. While it is true that the Moore Firm presents a number of cases in which a court either appointed a temporary administrator where the case was trial ready, see Harding, 155 A.D.2d at 265; Batan v. Schmerler, 155 Misc. 2d 46 (N.Y. Sup. Ct. Queens Cty. 1992); Biancono v. Pierre, 9 Misc. 3d 1126(A) (N.Y. Civ. Ct. N.Y. Cty. 2005), or declined to appoint one because the case was not yet trial ready, see Ganthier, 28 Misc. 3d 1219(A); Abecasis v. Fontanazza, 10 Misc. 2d 195 (N.Y. Civ. Ct. Kings Cty. 2005), the cases do not establish, or even purported to establish, a per se rule prohibiting the Supreme Court’s appointment of a temporary administrator in other circumstances. It is clear that the Supreme Court has broad discretion to appoint a temporary administrator, and that that discretion should be exercised in order to avoid undue delay and prejudice. That this discretion should also be exercised sparingly, with a bias toward allowing the Surrogate’s Court to resolve the matter, as stated by the trial-level decisions on which the Moore Firm relies, see Ganthier, 28 Misc. 3d 1219(A); Jones, 188 Misc. 2d 475, may perhaps be sound judicial policy, but this Court has seen no appellate-level precedent imposing such limitations. Ultimately, however, the Supreme Court may exercise its discretion where the circumstances call for it, regardless of the stage of the litigation or whether the case is otherwise “trial ready.” The circumstances raised by Plaintiff on the motion call for the Court’s exercise of its discretion. See Mattison v. Mayler, No. 520606/2016, 2022 WL 17548433 (N.Y. Sup. Ct. Kings Cty. Dec. 2, 2022) (appointing defense attorney as temporary administrator where decedent died in Jamaica without any assets in New York). Defendant Zissis did not reside or die in New York; rather, he both resided and died in Connecticut. Thus, as explained in Ms. Molinini’s affidavit and in counsel’s affirmation, in order for Plaintiff to secure the appointment of an administrator for Zissis’s estate, Plaintiff would need to hire local counsel in Connecticut and institute a proceeding in that state’s Probate Court. Only after the Connecticut court resolved the matter could Plaintiff then return to the Surrogate’s Court in New York State to commence a second, separate proceeding to have the administrator appointed by the Connecticut court authorized to appear on behalf of defendant Zissis’s estate in the instant action. The difficulties and delays inherent in completing that process are self-evident, and it would be prejudicial to Plaintiff to force her to suffer them, especially since the instant case remains in the early stages of discovery despite having been commenced over seven years ago in March 2016. Moreover, the existence of these circumstances distinguishes this case from those in which a court declined to appoint a temporary administrator because the case was not trial ready. The Moore Firm’s second argument in opposition to the motion is simply incorrect on the law. Initially, the SCPA expressly governs procedures utilized in the Surrogate’s Court. Obviously, the present application is not pending in the Surrogate’s Court but in the Supreme Court. The Moore Firm has provided no caselaw definitively establishing that the SCPA would apply to this Court’s decision to appoint a temporary administrator, and the answer to that question is unclear on the face of the statute itself. Indeed, if it were to appoint a temporary administrator in this case, the Court would not, based on its understanding, even issue separate “letters of administration.” Rather, this Court’s instant Decision and Order would alone impact the appointment. Further, even if the SCPA is applicable, SCPA §1001(1), on which the Moore Firm relies, is addressed only to letters of administration, not to letters of temporary administration. The Surrogate’s Court has itself recognized that letters of temporary administration are not governed by SCPA §1001(1): While the court has little discretion in the statutorily mandated appointment of eligible distributes in an administration proceeding, the appointment of a temporary administrator is in the sound discretion of the surrogate. Unlike the selection of an administrator, no class of persons is entitled to a priority in the selection of temporary administrator. …. While the statute does not specifically provide for who may receive temporary letters of administration, the court has discretion both on who may become the temporary administrator and whether to appoint one. That discretion is very broad, extending even to a person disinterested in the estate. In re Will of Nelson, 40 Misc. 3d 1218(A), at *2-3 (N.Y. Sur. Ct. Nassau Cty. 2013) (emphasis added) (internal quotation marks and citations omitted). Here, again, Plaintiff requests that the Moore Firm be appointed only as temporary administrator for the very limited purpose of defending this action up to the amount of the insurance policy. Therefore, the order of priority set forth in SCPA §1001(1) is inapplicable here. The Moore Firm’s third argument in opposition to the motion is potentially meritorious — although it does not, regardless of its merit or lack thereof, preclude the Court’s appointment of a temporary administrator here, see infra. Assuming arguendo that the SCPA applies to this Court’s determination, and that this Court’s Decision and Order appointing a temporary administrator qualifies as the issuance of “letters of administration,” SCPA §707 provides that “[l]etters may issue to a natural person or to a person authorized by law to be a fiduciary.” According to the Moore Firm, several New York trial courts have determined that §707 precludes the appointment of a law firm as a temporary administrator, because a law firm is not, of course, a “natural person.” Ganthier, 28 Misc. 3d at *2; Biancono, 9 Misc. 3d at *3. By contrast, however, several other trial courts have appointed law firms as temporary administrators without comment or analysis of §707. See, e.g., Eisler v. Iacono, No. 501183/2018, 2022 WL 1717292 (N.Y. Sup. Ct. Kings Cty. May 13, 2022); Norwood v. City of N.Y., No. 516456/2016, 2020 WL 3892217 (N.Y. Sup. Ct. Kings Cty. June 25, 2020); C.V. v. Scotti, No. 506237/2014, 2020 WL 2569401 (N.Y. Sup. Ct. Kings Cty. May 18, 2020); Lawrence v. Dinnall, Nos. 700896/2015, 8113/2015, 2017 WL 11612912 (N.Y. Sup. Ct. Queens Cty. Nov. 27, 2017). Thus, there does not appear to be agreement among the courts of this state as to whether a law firm can, pursuant to SCPA §707, lawfully serve in the capacity of a temporary administrator. Any discussion of this issue must begin with the text of the statute itself. Kuzmich v. 50 Murray St. Acquisition LLC, 34 N.Y.3d 84, 91 (2019). By its plain terms, SCPA §707 applies only to “letters.” Under SCPA §103(34), the term “letters” is defined as not only letters of administration but also as letters of temporary administration. Therefore, it is at least clear that §707 applies to the type of letters that may be at issue in this case and in these circumstances more generally. Next, §707 provides that letters may issue to either a “natural person” or a “person authorized by law to be a fiduciary.” The terms “person” and “natural person” are not specifically defined in SCPA §103, but the Court agrees with those courts that have interpreted “natural person” to mean a human being rather than a corporation, partnership, or other form of organization that may be considered an artificial person under the law. Ganthier, 28 Misc. 3d at *2; Biancono, 9 Misc. 3d at *3. Applying ordinary canons of statutory construction, however, the legislature’s use of the qualifier “natural” in §707 suggests that the term “person,” without any qualifier, means something broader than a human being, perhaps including a corporation, partnership, etc. Some support for that interpretation can be found in SCPA §103. For example, the term “creditor” is defined in §103(11) as “[a]ny person having a claim against a decedent or an estate.” It defies logic that this definition is meant to exclude ordinary lenders such as banks by use of the term “person.” Assuming, then, that the term “person,” as used in the SCPA, is broad enough to encompass a law firm, there is no genuine question that a law firm and its individual attorneys are fiduciaries to their clients. See, e.g., Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, (1st Dep’t 2008) (“It is well settled that the relationship of client and counsel is one of ‘unique fiduciary reliance’ and that the relationship imposes on the attorney ‘[t]he duty to deal fairly, honestly and with undivided loyalty…including maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s.” (quoting In re Cooperman, 83 N.Y.2d 465, 472 (1994))). A law firm is, therefore, technically “authorized by law to be a fiduciary.” Consequently, a law firm arguably — but not clearly — qualifies under SCPA §707 to be appointed as a temporary administrator. Finally, the Court rejects the Moore Firm’s fourth argument, specifically, that it would be inappropriate to appoint the Moore Firm as a temporary administrator because its attorneys are staff counsel and employees of “The Travelers Indemnity Company and its Property Casualty Affiliates” and, thus, it did not have the usual attorney-client relationship with defendant Zissis. (NYSCEF Doc. 66, 12 (citing Castrovinci v. Edwards, 59 Misc. 2d 696 (N.Y. Sup. Ct. Westchester Cty. 1969))) Defendant Zissis was only represented by the Moore Firm. That is the law firm that has entered its appearance on behalf of Zissis in NYSCEF. And it is the law firm that submitted an Answer to the Complaint, and has now submitted papers in opposition to the instant motion, on behalf of Zissis. Regardless of how the Moore Firm was retained or the nature of its relationship with Traveler’s, it has represented itself to the Court in this action as counsel for defendant Zissis. The Moore Firm, and any other law firm affiliated with an insurance carrier, does not assume lesser or other attorney-client obligations merely because of its affiliation with an insurance carrier. The suggestion that the attorney-client relationship is somehow altered in these circumstances is simply not supported by the law, including by Castrovinci. There, the court’s observation was made in the context of the decedent’s trial counsel, who was hired by the decedent’s liability insurance carrier, having only learned of his client’s death on the eve of trial. Counsel had argued to the court that he was not previously aware of his client’s death because of the nature of how he was retained — in other words, because he did not have a personal relationship with the client prior to his retention. Nothing in Castrovinci suggests, however, that trial counsel did not assume all of the responsibilities and legal duties normally attendant to his retention as the decedent’s attorney or that it would be inappropriate, because of the nature of his retention, to appoint him as a temporary administrator. Indeed, there is no indication in Castrovinci that any party ever specifically sought to appoint trial counsel as the temporary administrator, so the issue was not even in dispute in that case, making any observation by the court dicta. Dieye, to which the Moore Firm also cites, is similarly unsupportive of the Moore Firm’s argument. In that case, the Second Department held that the trial court inappropriately selected the attorney retained by the decedent’s insurance carrier to be temporary administrator. Dieye, 104 A.D.3d at 726. The Second Department’s ruling, however, was not based on some per se rule precluding an attorney retained by an insurance carrier from serving as a temporary administrator; rather, it was based merely on the fact that “the insurance company has disclaimed coverage for the subject accident, [and] she would be subject to divided loyalties.” Id. There has been no allegation in this case that Traveler’s has disclaimed, or intends to disclaim, coverage for defendant Zissis under the applicable insurance policy. Moreover, despite the Moore Firm’s protestations that it could not appropriately be appointed Zissis’s estate’s temporary administrator for the limited purpose of defending this action, the interests of defendant Zissis’s estate and of Traveler’s (and thus also the Moore Firm) are fully aligned here. Plaintiff has stipulated to limit his recovery against defendant Zissis’s estate to the amount of the applicable Traveler’s insurance policy. As to the claims against defendant Zissis, then, the Moore Firm is essentially defending Traveler’s insurance policy. See Batan, 155 Misc. 2d at 48 (“It has been held that where a plaintiff seeks to obtain his recovery only from the defendant’s insurance policy, the action really is between him and the insurer.” (citing Gelbman v. Gelbman, 23 N.Y.2d 434 (1969))). Thus, if the Moore Firm were appointed temporary administrator here, it would not assume any responsibilities beyond which it has already assumed as trial counsel. See Biancono, 9 Misc. 3d at *3 (“[S]ince such appointment is both temporary and limited, and involves no additional burden above that which the firm already assumed as trial counsel, the court will exercise its discretion in appointing such persons.”); Batan, 155 Misc. 2d at 48 (appointing decedent’s counsel, who was house counsel for Aetna, to be temporary administrator conditioned on plaintiff stipulating to limit any recovery against the estate to the available insurance coverage). Nevertheless, because whether a law firm can be appointed as a temporary administrator is ultimately unclear, the Court choses a different path here. The Court instead exercises its discretion and appoints Brent S. Golisano, Esq., of the Moore Firm, and signatory to the opposition papers on the instant motion, to serve as temporary administrator of defendant Zissis’s estate solely with regard to one asset, the automobile insurance policy issued to Zissis by Traveler’s, and only until the conclusion of this litigation arising from the motor-vehicle accident that occurred on February 20, 2015. See, e.g., Mattison, 2022 WL 17548433, at *1 (appointing individual defense attorney as temporary administrator); Biancono, 9 Misc. 3d at *3 (appointing named partners of defense firm as temporary administrators). The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied. Accordingly, it is hereby: ORDERED that plaintiff LISA ANN FAHEY’s (“Plaintiff”) motion (Seq. No. 4) seeking an order, pursuant to CPLR §2221, granting Plaintiff leave to renew that part of this Court’s decision on Motion Sequence 3, dated December 11, 2020 (the Prior Decision) that denied Plaintiff’s cross-motion (Seq. No. 3) for an order appointing the Law Office of Thomas K. Moore (the “Moore Firm”) as guardians to serve as temporary Administrator for the deceased defendant PAUL A. ZISSIS (“Zissis”), substituting said Administrator in place of Zissis, and lifting the stay currently in place in this action due to Zissis’s death is hereby GRANTED; and it is further ORDERED that, upon renewal, that part of the Prior Decision that denied Plaintiff’s cross-motion (Seq. No.3) is VACATED and it is further ORDERED that, upon vacatur, the prior cross-motion (Seq. No. 3) is granted to the extent that Brent S. Golisano, Esq. is appointed Temporary Administrator of the Estate of PAUL A. ZISSIS for the sole purpose of, and with his powers limited to, defending this action to the extent of available insurance coverage, and said Temporary Administrator shall be substituted herein in place of defendant Zissis; and it is further ORDERED that the Clerk shall LIFT the STAY currently in place in this action and RESTORE this action to ACTIVE status; and it is further ORDERED that the caption of this action shall henceforth be AMENDED to read as: LISA ANN FAHEY, Plaintiff, v. BRENT S. GOLISON, ESQ., as Temporary Administrator of the Estate of PAUL A. ZISSIS, DAVIDSON CO., INC. OF MERIDEN, RYDER TRUCK RENTAL, INC., JAMES MILLER, and BOZZUTOS, INC., Defendants ; and it is further ORDERED that Plaintiff, by July 15, 2023, shall file to NYSCEF a completed form EF 22;2 and it further ORDERED that the Clerk shall mark the motion (Seq. No. 4) disposed in all court records. This constitutes the Decision and Order of the Court. 1. CHECK ONE CASE DISPOSED IN ITS ENTIRETY X CASE STILL ACTIVE 2. MOTION IS X GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE SETTLE ORDER SUBMIT ORDER SCHEDULE APPEARANCE FIDUCIARY APPOINTMENT REFEREE APPOINTMENT X LIFT STAY X MARK ACTIVE X AMEND CAPTION Dated: May 16, 2023
