The following numbered papers were read on this motion: NYSCEF Doc Nos. 33-41. Submitted by Defendant NYSCEF Doc No. 33: Order to Show Cause (Proposed) NYSCEF Doc No. 34: Affirmation of Giovanna Condello in Support NYSCEF Doc No. 35: Certificate of Compliance NYSCEF Doc No. 36: Exhibit A — Summons & Complaint, Answers NYSCEF Doc No. 37: Exhibit B — Joint Trial Order NYSCEF Doc No. 38: Exhibit C — Letter to Court NYSCEF Doc No. 39: Affirmation of Service NYSCEF Doc No. 41: Order to Show Cause, Conformed Copy Filed by Court NYSCEF Doc No. 40: Order to Show Cause, Signed DECISION AND ORDER I. Questions Presented The issue is whether Defendant Harry Pech’s attorney had standing to bring a motion for an order to dismiss the instant action because Pech passed away. II. Background Defendant Harry Pech was involved in a motor vehicle accident on September 11, 2015, where Plaintiff allegedly sustained injuries. Defendant Pech, however, passed away for reasons unrelated to the motor vehicle accident, before a judgement was entered. A death certificate was filed on August 1, 2022. Now, Defendants Noula Cristian and Elvira Fakhrieva’s attorney, Giovanna Condello, Esq. moved the Court to have the case dismissed. Plaintiff wishes to have this personal injury lawsuit continue, but said Defendants’ attorneys move for an order to dismiss the action due to a failure by Plaintiff to appoint a proper substitute for the deceased Pech within a reasonable time. III. Discussion Said Defendants’ counsel had reached out to the Court in August 2022, advising it of Defendant Harry Pech’s death and requested that the this lawsuit be marked be stayed pending an administrator being appointed for Pech’s estate. A stay was entered. Earlier this year, said Defendants’ attorney filed this motion pursuant to CPLR §1021, seeking dismissal of the action. Defendants’ attorney argues that Plaintiff has failed to accomplish a proper substitution for the deceased Defendant Pech despite two years having passed since the death of the Defendant. Defense counsel also argues that the lack of action being taken by Plaintiff is burdensome and extremely prejudicial to the moving defendant. They requested for the Plaintiffs Complaint to be dismissed. Although the defense counsels’ motion to dismiss due to a lack of substitution by the Plaintiff for the Defendant was proper, defense counsel lacks authority to file a motion of behalf of the deceased defendant as “the death of a party terminates his or her attorney’s authority to act on behalf of the deceased party” (see id. at 474, 15 N.Y.S.3d 131; 977 Lewis v. Kessler, 12 A.D.3d 421, 422, 784 N.Y.S.2d 574). This means the Court has no jurisdiction to consider this motion to dismiss due to the lack of authority the Defense counsel has (see Vicari v. Kleinwaks, 157 A.D.3d 975, 70 N.Y.S.3d 532). IV. Conclusion With the Defense counsel’s allegations and Plaintiffs complaint being considered, there is substantial evidence to support a conclusion that Defense counsel lacks the authority to file a motion to Order a dismissal of the instant action taken by Plaintiff. Therefore, the motion should be denied, and the matter be marked pending till an administrator is appointed to the decedent’s estate. Accordingly, IT IS HEREBY ORDERED that Defendants’ motion for Order to be dismissed on the issue of liability is DENIED in its entirety, Dated: July 22, 2024
