Preview
FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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JOYCE SCHULTZ AND TIM SCHULTZ, Index No. 707879/19
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITION
SHELDON H. COHEN, G.L.M. SECURITY &
SOUND, INC. AND NANCY ROSENBLUTH,
Defendants.
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JESSICA A. MORENO, ESQ., an attorney at law duly admitted to practice in the Courts of the
State of New York, affirms under the penalties of perjury that:
1. I am an associate with the law firm of BARBIERO BISCH O’CONNOR &
COMMANDER LLP. This firm represented defendant, SHELDON H. COHEN, in the captioned action,
prior to his death and prior to the stay of this action, and continues to represent the defendants G.L.M.
SECURITY & SOUND, INC. AND NANCY ROSENBLUTH.
2. I am familiar with the facts and circumstances of this action and make this affirmation upon
records maintained by the law firm of BARBIERO BISCH O’CONNOR & COMMANDER LLP, said
records affirmant believes to be true, complete and correct.
3. This affirmation is submitted in opposition to plaintiff’s motion for an Order pursuant to
CPLR §§1021 and 1015 appointing a temporary administrator for SHELDON H. COHEN, and for
substation of said administrator as a party in this action.
Plaintiff’s Motion Should be Denied as it is Procedurally Flawed
4. Following the death of a party, all proceedings should be stayed pending
substitution being made. Matter of Jordan v Newman, 78 AD2d 756; Nigro v Perry Truck Rental
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Corp., 40 AD2d 1019; Barnes v Chrysler Leasing Corp., 37 AD2d 851; Carolan v O'Donnell, 141
App Div 463, 465. The only exception to this stay, and the only proceeding which would seem to
be permitted in the face of the stay, is provided by CPLR 1021 which states: “[I]f the event
requiring substitution is the death of a party, and timely substitution has not been made, the court,
before proceeding further, shall, on such notice as it may in its discretion direct, order the persons
interested in the decedent's estate to show cause why the action or appeal should not be dismissed.”
An application for the continuance of an action upon the death of a party with a substitution of
parties is by motion in the action. Skinner v. Sullivan, 112 Misc. 365, 184 N.Y.S. 159 (Sup
1920). Due notice of the application for substitution should be given to the parties to the action
who do not join in the application and to the person to be substituted if they are not applying in
their own behalf. Betts v. De Selding, 81 A.D. 161, 80 N.Y.S. 799 (1st Dep't 1903); Clancy v.
Bernstein, 66 N.Y.S.2d 52 (Sup 1946).
5. A notice of motion to continue an action against a deceased defendant's
representative must be served on such representative rather than on the attorney for the
decedent; since the representative cannot have the decedent's attorney forced upon the
representative unwillingly, service of the notice on the attorney is not sufficient. Wisdom v.
Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682 (1st Dep't 1985). Where proper notice has not been
given, the consequent order will be deemed a nullity due to lack of jurisdiction. Weber v.
Bellinger, 124 A.D.2d 1009, 508 N.Y.S.2d 779 (4th Dep't 1986); Horseman Antiques, Inc. v.
Huch, 50 A.D.3d 963, 856 N.Y.S.2d 663 (2d Dep't 2008).
6. The grant or denial of a motion for continuance and substitution upon the death of
a party lies within the sound discretion of the trial court. Rosenfeld v. Hotel Corp. of America, 20
N.Y.2d 25, 281 N.Y.S.2d 308, 228 N.E.2d 374 (1967); Lyon v. Park, 111 N.Y. 350, 18 N.E. 863
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(1888); Rochester Urban Renewal Agency v. Salitan, 52 A.D.2d 753, 382 N.Y.S.2d 207 (4th Dep't
1976). However, where no persons interested in the estate were provided any notice of plaintiff’s
motion, plaintiff is not entitled to the appointment of a temporary administrator. James v.
Daughtry, 22 Misc. 3d 608, 872 N.Y.S.2d 633 (Sup 2008).
7. Here, plaintiff neither notified the decedent party’s next of kin of the application,
nor did he notify the proposed administrators of the application. The plaintiff’s affirmation in
support indicates that plaintiff’s counsel is well aware of the existence of at least three potential
heirs, and potentially interested parties, as well as two addresses of same. However, plaintiff has
failed to notify them of the instant application. It bears repeating that this office continues to
represent G.L.M. SECURITY & SOUND, INC. AND NANCY ROSENBLUTH. It also
represented Mr. COHEN, prior to his death. However, this office does not represent Mr. COHEN’s
Estate, nor does it represent any individual interested in same. Therefore, plaintiff’s motion should
be denied.
Plaintiff’s Motion Should be Denied Because it Fails to Show that Appointing the
Insurance Company as Temporary Administrators of the Plaintiff’s Estate is Proper
8. While plaintiff’s affirmation in support of its motion cites to statute and law
indicating that the Supreme Court has the power to appoint and substitute a temporary
administrator of a deceased party’s estate, it fails to formulate any argument regarding the
appropriateness of the proposed appointment of Utica National Insurance Group and Utica Mutual
Insurance Company.
9. Plaintiff cites to Aptacy v. H.J. Giorgi, Inc., 124 Misc. 2d 175 (Sup. Ct. Kings
County 1984), which indicates that the Supreme Court may order the appointment of an
administrator but does not go further so as to state that an insurance company would be an
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appropriate such appointment. Grillo v. Tese, 113 A.D.2d 871, 873 (1985), and Dieye v. Royal
Blue Services, Inc., 104 A.D.3d 724, 961 N.Y.S.2d 478 (2d Dep't 2013) likewise stand for the
same principals, but do not support the notion that an insurance company would be an appropriate
administrator of estate.
10. The CPLR provides generally that if a party dies and the claim for or against the
party is not thereby extinguished, the court must order substitution of the proper parties, and this
usually involves the substitution of the decedent's executor or administrator. CPLR 1015(a);
Nunez v. Goodman, 264 A.D.2d 651, 695 N.Y.S.2d 559 (1st Dep't 1999); Mas v. Ellis, 184 Misc.
2d 870, 711 N.Y.S.2d 300 (Sup 2000); Berger v. Ickovicz, 175 Misc. 2d 677, 669 N.Y.S.2d 488
(Sup 1998).
11. If a party dies and the claim for or against the party is not thereby extinguished, in
the event no personal representative exists, an appropriate appointment should be made, and that
individual should be substituted in place of the decedent. Dieye v. Royal Blue Services, Inc., 104
A.D.3d 724, 961 N.Y.S.2d 478 (2d Dep't 2013).
12. It is respectfully submitted that the proposed administrators would not be the
appropriate, and that the inclusion of Utica National Insurance Group and Utica Mutual Insurance
Company in the caption and as parties in this matter would be prejudicial to GLM and NANCY
ROSENBLUTH, who are insured by Utica National Insurance Group and Utica Mutual Insurance
Company.
13. A well settled general rule prohibits references to the defendant’s liability
insurance. “Evidence that the defendant in an action for negligence [is] insured in a casualty
company, or that the defense [is] conducted by an insurance company, is incompetent and so
dangerous as to require a reversal even when the court strikes it from the record and directs the
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jury to disregard it, unless it clearly appears that it could not have influenced the verdict. 201 NY
479, 95 N.E. 10 (Ct. App. 1911); citing Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494 (Ct.
App., 1902); Loughlin v. Brassil, 187 N. Y. 128, 135, 79 N. E. 854; Hordern v. Salvation Army,
124 App. Div. 674, 676, 109 N. Y. Supp. 131; Haigh v. Edelmeyer & M. H. Elevator Co., 123
App. Div. 376, 380, 107 N. Y . Supp. 936; Manigold v. Black River Traction Co., 81 App. Div.
381, 384, 80 N. Y. Supp. 861. Even an insinuation before a jury of liability insurance coverage of
a defendant has been found to be prejudicial. Griffin v. Corporation of Church of Assumption of
Mechanicville, 14 A.D.2d 620 (3rd Dept., 1961).
Plaintiff’s Application for an Appointment of a Temporary Administrator Should be Made
in Surrogate’s Court
11. If the decedent's survivors are dragging their heels in connection with
the appointment of a personal representative for the estate, an opposing party may take the
initiative and seek the appointment of a temporary administrator to represent the estate in the
pending civil action. CPLR 1021. Ordinarily, the application for an appointment of this nature is
made in the surrogate's court, and this is followed by a motion for substitution in the court in which
the relevant litigation is pending. Id. The supreme court, however, does have jurisdiction to
entertain both applications, i.e., appointment of a personal representative and substitution of such
personal representative in the pending action. Id. Nevertheless, the supreme court is not likely to
exercise its power to appoint a temporary administrator unless the party's death occurs during trial
or on the eve thereof. Practice Commentary [C1021:1 to C1021:3] following CPLR 1021; Jones
v. Vetter, 188 Misc. 2d 475, 727 N.Y.S.2d 875 (Sup 2001)(Supreme Court refused to exercise its
authority to appoint a fiduciary, upon the death of the defendant, because it saw no reason for not
following the usual practice of petitioning the surrogate's court for the appointment of a fiduciary).
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12. Here, the plaintiff has not made any showing that the instant situation warrants the
intervention of the Supreme Court, rather than utilizing the ordinary channels for the instant
application, which would be the Surrogate’s Court.
WHEREFORE, for the foregoing reasons, your affirmant respectfully requests that this
Court deny plaintiff’s motion, in its entirety, together with such other, further, and different relief
as this Court deems just, proper, and equitable.
Dated: Melville, New York
August 11, 2022
Yours, etc.
BARBIERO BISCH O’CONNOR &
COMMANDER LLP
By: _______
JESSICA A. MORENO
Attorneys for Defendants
SHELDON H. COHEN, G. L. M.
SECURITY AND SOUND, INC.
i/s/h/a G.L.M. SECURITY &
SOUND, INC., AND NANCY
ROSENBLUTH
35 Pinelawn Road, Suite 127
Melville, New York 11747
Tel.: (631) 481-2390
Fax: (631) 840-0645
BBOC File No.: 760.0124
TO: TALISMAN & DELORENZ, P.C.
Attorneys for Plaintiffs
JOYCE SCHULTZ AND TIM SCHULTZ
362 Knickerbocker Avenue
Brooklyn, New York 11237
Tel.: (718) 602-3330
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Preview
FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------X JOYCE SCHULTZ AND TIM SCHULTZ, Index No. 707879/19 Plaintiffs, AFFIRMATION IN -against- OPPOSITION SHELDON H. COHEN, G.L.M. SECURITY & SOUND, INC. AND NANCY ROSENBLUTH, Defendants. --------------------------------------------------------------------X JESSICA A. MORENO, ESQ., an attorney at law duly admitted to practice in the Courts of the State of New York, affirms under the penalties of perjury that: 1. I am an associate with the law firm of BARBIERO BISCH O’CONNOR & COMMANDER LLP. This firm represented defendant, SHELDON H. COHEN, in the captioned action, prior to his death and prior to the stay of this action, and continues to represent the defendants G.L.M. SECURITY & SOUND, INC. AND NANCY ROSENBLUTH. 2. I am familiar with the facts and circumstances of this action and make this affirmation upon records maintained by the law firm of BARBIERO BISCH O’CONNOR & COMMANDER LLP, said records affirmant believes to be true, complete and correct. 3. This affirmation is submitted in opposition to plaintiff’s motion for an Order pursuant to CPLR §§1021 and 1015 appointing a temporary administrator for SHELDON H. COHEN, and for substation of said administrator as a party in this action. Plaintiff’s Motion Should be Denied as it is Procedurally Flawed 4. Following the death of a party, all proceedings should be stayed pending substitution being made. Matter of Jordan v Newman, 78 AD2d 756; Nigro v Perry Truck Rental 1 of 6 FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 Corp., 40 AD2d 1019; Barnes v Chrysler Leasing Corp., 37 AD2d 851; Carolan v O'Donnell, 141 App Div 463, 465. The only exception to this stay, and the only proceeding which would seem to be permitted in the face of the stay, is provided by CPLR 1021 which states: “[I]f the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed.” An application for the continuance of an action upon the death of a party with a substitution of parties is by motion in the action. Skinner v. Sullivan, 112 Misc. 365, 184 N.Y.S. 159 (Sup 1920). Due notice of the application for substitution should be given to the parties to the action who do not join in the application and to the person to be substituted if they are not applying in their own behalf. Betts v. De Selding, 81 A.D. 161, 80 N.Y.S. 799 (1st Dep't 1903); Clancy v. Bernstein, 66 N.Y.S.2d 52 (Sup 1946). 5. A notice of motion to continue an action against a deceased defendant's representative must be served on such representative rather than on the attorney for the decedent; since the representative cannot have the decedent's attorney forced upon the representative unwillingly, service of the notice on the attorney is not sufficient. Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682 (1st Dep't 1985). Where proper notice has not been given, the consequent order will be deemed a nullity due to lack of jurisdiction. Weber v. Bellinger, 124 A.D.2d 1009, 508 N.Y.S.2d 779 (4th Dep't 1986); Horseman Antiques, Inc. v. Huch, 50 A.D.3d 963, 856 N.Y.S.2d 663 (2d Dep't 2008). 6. The grant or denial of a motion for continuance and substitution upon the death of a party lies within the sound discretion of the trial court. Rosenfeld v. Hotel Corp. of America, 20 N.Y.2d 25, 281 N.Y.S.2d 308, 228 N.E.2d 374 (1967); Lyon v. Park, 111 N.Y. 350, 18 N.E. 863 2 of 6 FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 (1888); Rochester Urban Renewal Agency v. Salitan, 52 A.D.2d 753, 382 N.Y.S.2d 207 (4th Dep't 1976). However, where no persons interested in the estate were provided any notice of plaintiff’s motion, plaintiff is not entitled to the appointment of a temporary administrator. James v. Daughtry, 22 Misc. 3d 608, 872 N.Y.S.2d 633 (Sup 2008). 7. Here, plaintiff neither notified the decedent party’s next of kin of the application, nor did he notify the proposed administrators of the application. The plaintiff’s affirmation in support indicates that plaintiff’s counsel is well aware of the existence of at least three potential heirs, and potentially interested parties, as well as two addresses of same. However, plaintiff has failed to notify them of the instant application. It bears repeating that this office continues to represent G.L.M. SECURITY & SOUND, INC. AND NANCY ROSENBLUTH. It also represented Mr. COHEN, prior to his death. However, this office does not represent Mr. COHEN’s Estate, nor does it represent any individual interested in same. Therefore, plaintiff’s motion should be denied. Plaintiff’s Motion Should be Denied Because it Fails to Show that Appointing the Insurance Company as Temporary Administrators of the Plaintiff’s Estate is Proper 8. While plaintiff’s affirmation in support of its motion cites to statute and law indicating that the Supreme Court has the power to appoint and substitute a temporary administrator of a deceased party’s estate, it fails to formulate any argument regarding the appropriateness of the proposed appointment of Utica National Insurance Group and Utica Mutual Insurance Company. 9. Plaintiff cites to Aptacy v. H.J. Giorgi, Inc., 124 Misc. 2d 175 (Sup. Ct. Kings County 1984), which indicates that the Supreme Court may order the appointment of an administrator but does not go further so as to state that an insurance company would be an 3 of 6 FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 appropriate such appointment. Grillo v. Tese, 113 A.D.2d 871, 873 (1985), and Dieye v. Royal Blue Services, Inc., 104 A.D.3d 724, 961 N.Y.S.2d 478 (2d Dep't 2013) likewise stand for the same principals, but do not support the notion that an insurance company would be an appropriate administrator of estate. 10. The CPLR provides generally that if a party dies and the claim for or against the party is not thereby extinguished, the court must order substitution of the proper parties, and this usually involves the substitution of the decedent's executor or administrator. CPLR 1015(a); Nunez v. Goodman, 264 A.D.2d 651, 695 N.Y.S.2d 559 (1st Dep't 1999); Mas v. Ellis, 184 Misc. 2d 870, 711 N.Y.S.2d 300 (Sup 2000); Berger v. Ickovicz, 175 Misc. 2d 677, 669 N.Y.S.2d 488 (Sup 1998). 11. If a party dies and the claim for or against the party is not thereby extinguished, in the event no personal representative exists, an appropriate appointment should be made, and that individual should be substituted in place of the decedent. Dieye v. Royal Blue Services, Inc., 104 A.D.3d 724, 961 N.Y.S.2d 478 (2d Dep't 2013). 12. It is respectfully submitted that the proposed administrators would not be the appropriate, and that the inclusion of Utica National Insurance Group and Utica Mutual Insurance Company in the caption and as parties in this matter would be prejudicial to GLM and NANCY ROSENBLUTH, who are insured by Utica National Insurance Group and Utica Mutual Insurance Company. 13. A well settled general rule prohibits references to the defendant’s liability insurance. “Evidence that the defendant in an action for negligence [is] insured in a casualty company, or that the defense [is] conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and directs the 4 of 6 FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 jury to disregard it, unless it clearly appears that it could not have influenced the verdict. 201 NY 479, 95 N.E. 10 (Ct. App. 1911); citing Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494 (Ct. App., 1902); Loughlin v. Brassil, 187 N. Y. 128, 135, 79 N. E. 854; Hordern v. Salvation Army, 124 App. Div. 674, 676, 109 N. Y. Supp. 131; Haigh v. Edelmeyer & M. H. Elevator Co., 123 App. Div. 376, 380, 107 N. Y . Supp. 936; Manigold v. Black River Traction Co., 81 App. Div. 381, 384, 80 N. Y. Supp. 861. Even an insinuation before a jury of liability insurance coverage of a defendant has been found to be prejudicial. Griffin v. Corporation of Church of Assumption of Mechanicville, 14 A.D.2d 620 (3rd Dept., 1961). Plaintiff’s Application for an Appointment of a Temporary Administrator Should be Made in Surrogate’s Court 11. If the decedent's survivors are dragging their heels in connection with the appointment of a personal representative for the estate, an opposing party may take the initiative and seek the appointment of a temporary administrator to represent the estate in the pending civil action. CPLR 1021. Ordinarily, the application for an appointment of this nature is made in the surrogate's court, and this is followed by a motion for substitution in the court in which the relevant litigation is pending. Id. The supreme court, however, does have jurisdiction to entertain both applications, i.e., appointment of a personal representative and substitution of such personal representative in the pending action. Id. Nevertheless, the supreme court is not likely to exercise its power to appoint a temporary administrator unless the party's death occurs during trial or on the eve thereof. Practice Commentary [C1021:1 to C1021:3] following CPLR 1021; Jones v. Vetter, 188 Misc. 2d 475, 727 N.Y.S.2d 875 (Sup 2001)(Supreme Court refused to exercise its authority to appoint a fiduciary, upon the death of the defendant, because it saw no reason for not following the usual practice of petitioning the surrogate's court for the appointment of a fiduciary). 5 of 6 FILED: QUEENS COUNTY CLERK 08/11/2022 02:46 PM INDEX NO. 707879/2019 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/11/2022 12. Here, the plaintiff has not made any showing that the instant situation warrants the intervention of the Supreme Court, rather than utilizing the ordinary channels for the instant application, which would be the Surrogate’s Court. WHEREFORE, for the foregoing reasons, your affirmant respectfully requests that this Court deny plaintiff’s motion, in its entirety, together with such other, further, and different relief as this Court deems just, proper, and equitable. Dated: Melville, New York August 11, 2022 Yours, etc. BARBIERO BISCH O’CONNOR & COMMANDER LLP By: _______ JESSICA A. MORENO Attorneys for Defendants SHELDON H. COHEN, G. L. M. SECURITY AND SOUND, INC. i/s/h/a G.L.M. SECURITY & SOUND, INC., AND NANCY ROSENBLUTH 35 Pinelawn Road, Suite 127 Melville, New York 11747 Tel.: (631) 481-2390 Fax: (631) 840-0645 BBOC File No.: 760.0124 TO: TALISMAN & DELORENZ, P.C. Attorneys for Plaintiffs JOYCE SCHULTZ AND TIM SCHULTZ 362 Knickerbocker Avenue Brooklyn, New York 11237 Tel.: (718) 602-3330 6 of 6