Preview
INDEX NO. 601285/2023
FILED: NASSAU COUNTY CLERK 08724/2023 11:31 AM
NYSCEF DOC. NO. 85 RECEIVED NYSCEF 08/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
BARRY YAMPOL, Index No. 601285/2023
Plaintiff, Hon. Danielle M. Peterson
-against-. Mot. Seq. No. __
CERTAIN UNDERWRITERS AT LLOYD’S,
LONDON, including those subscribing to Syndicate
Nos. MIT 3210, PEM 4000, TAL 1183, MKL 3000,
CGM 2488, AXS 1686, CSL 1084, ASP 4711, COF
1036, AUW 0609, TRV 5000, ARK 4020, AAL 2012 >
ADV 0780, AUL 1274, AFB 2623, AFB 0623, AES
1225, ANV 1861, ENH 5151, WRB 1967, BRT 2987,
Apollo 9975, CHN 2015, KLN 0510,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DAVID YAMPOL’S MOTION TO
SUBSTITUTE HIMSELF, AS PERSONAL REPRESENTATIVE OF BARRY
YAMPOL’S ESTATE, AS PLAINTIFF
Covington & Burling LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
(212) 841-1000
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-6000
Attorneys for David Yampol, Personal
Representative of Barry Yampol’s Estate
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TABLE OF CONTENTS
Introduction
Argument
I Under New York Law, the Court is Required to Permit David Yampol, as
Personal Representative for Barry Yampol’s Estate, to Take the Place of Decedent
Barry Yampol as Plaintiff... eee
Conclusion
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TABLE OF AUTHORITIES
Page(s)
Cases
Brower v. Brower,
226 A.D.2d 92 (1st Dep’t 1997)
German-Am. Coffee Co. v. Johnston,
168 A.D. 31 (Ist. Dep’t 1915)
Heslin v. Cnty. of Greene,
14.N.Y.3d 67 (2010)
Other Authorities
CPLR§ 1015
CPLR§ 1021 1,2
i
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Introduction
Under CPLR §§ 1015 and 1021, when a plaintiff dies, a Court is required to order the
substitution of the decedent’s representative for the decedent, to permit the representative to pursue
the decedent’s claims. Plaintiff Barry Yampol (the “Decedent”) passed away on June 1, 2023. His
son, David Yampol, has been appointed as the Personal Representative of Barry Yampol’s Estate.
New York law permits David Yampol, as the duly appointed representative for Decedent’s estate,
to pursue Decedent’s breach of contract claims against Certain Underwriters at Lloyd’s London
(the “Insurers”). The Court is therefore required to grant David Yampol’s motion to substitute
himself, as Personal Representative of Barry Yampol’s Estate, as Plaintiff in the above-captioned
action.
Argument
Under New York Law, the Court is Required to Permit David Yampol, as Personal
Representative for Barry Yampol’s Estate, to Take the Place of Decedent Barry
Yampol as Plaintiff.
CPLR § 1015(a) states that: “Ifa party dies and the claim for or against him is not thereby
extinguished the court shall order substitution of the proper parties.” A motion for substitution
may be made by the representative of a party. CPLR § 1021. When a motion to substitute is made
by a proper party, the Court is required to order substitution. CPLR § 1015 (stating the Court
“shall order substitution of the proper parties” (emphasis added)).
Barry Yampol passed away on June 1, 2023. NYSCEF 83 (Certificate of Death). On
August 15, 2023, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida issued Letters of Administration appointing David Yampol the Personal Representative of
Barry Yampol’s estate, with “full power to administer the Estate according to law,” including the
power “to ask, demand, sue for, recover and receive the property of’ Barry Yampol. NYSCEF 84
at 1 (Letters of Administration). David Yampol, acting as Personal Representative of Barry
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Yampol’s Estate, is therefore entitled under CPLR § 1021 to bring this motion to substitute himself
as plaintiff in this case.!
The complaint in the above-captioned action alleges that Defendants breached the terms of
the contract of insurance Decedent purchased from them and seeks damages resulting from that
breach. See generally NYSCEF 2; NYSCEF 82 4 6. Under New York law, breach of contract
claims survive the death of a plaintiff. Heslin v. Cnty. of Greene, 14 N.Y.3d 67, 74 n.4 (2010)
(“[A]II tort and contract actions that belonged to a decedent may now be maintained by the estate's
personal representative.”); Brower v. Brower, 226 A.D.2d 92, 94 (1st Dep’t 1997) (“[Defendant]
breached the agreement. Decedent clearly had the right to seek specific performance of the
agreement at that time, a contract right which survived decedent’s death and can be enforced in an
action maintained by plaintiff.”); German-Am. Coffee Co. v. Johnston, 168 A.D. 31, 33 (1st. Dep’t
1915) (“That a cause of action for the breach of a contract, whether express or implied, survives
the death of the defendant, is so thoroughly settled that the citation of authorities is unnecessary.”).
Conclusion
Thus, since David Yampol has been duly appointed Personal Representative of Barry
Yampol’s estate, and is allowed under New York law to pursue Decedent Barry Yampol’s breach
of contract claim, the Court is required to grant the motion of David Yampol as Personal
' This is a motion to substitute the Decedent’s Personal Representative in an ongoing breach of
contract action between a Florida Domiciliary, and insurer Defendants whose principle offices are
in another country. Accordingly, it is not necessary for David Yampol to obtain ancillary letters
from a New York court to pursue this action. See Deborah Kearns, N.Y. Surr. Ct. Proc. Act Law
§ 206 Practice Commentaries (McKinney 2021) (“[T]he situs of intangible assets is decedent's
domicile at date of death.”); Jn re Est. of Baer, 46 A.D.3d 1368, 1369 (3d Dep’t 2007) (stating the
situs of intangible assets is the decedent’s domicile at the time of death).
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Representative for Barry Yampol’s Estate and order the substitution of the Plaintiff in this action
from “Barry Yampol” to “David Yampol, Personal Representative of Barry Yampol’s Estate.”
Dated: New York, New York COVINGTON & BURLING LLP
August 24, 2023
By: /s/ Joseph Vandegriff
David A. Luttinger Jr.
Joseph Vandegriff
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
Telephone: (212) 841-1000
Email: dluttinger@cov.com
jvandegriff@cov.com
Kevin R. Glandon?
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-60000
E-mail: kglandon@cov.com
Attorneys for David Yampol, Personal
Representative of Barry Yampol’s Estate
> Not admitted in New York, Pro Hac Vice application submitted.
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ATTORNEY CERTIFICATION PURSUANT TO NYCRR 202.8b
I, Joseph Vandegriff, an attorney admitted to practice before the Courts of the State of
New York, hereby certify that the word count of the attached Memorandum of Law, excluding
the caption, table of contents, table of authorities and signature block is 679.
Dated: New York, New York /s/ Joseph Vandegriff
August 24, 2023 Joseph Vandegriff
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Preview
INDEX NO. 601285/2023 FILED: NASSAU COUNTY CLERK 08724/2023 11:31 AM NYSCEF DOC. NO. 85 RECEIVED NYSCEF 08/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU BARRY YAMPOL, Index No. 601285/2023 Plaintiff, Hon. Danielle M. Peterson -against-. Mot. Seq. No. __ CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, including those subscribing to Syndicate Nos. MIT 3210, PEM 4000, TAL 1183, MKL 3000, CGM 2488, AXS 1686, CSL 1084, ASP 4711, COF 1036, AUW 0609, TRV 5000, ARK 4020, AAL 2012 > ADV 0780, AUL 1274, AFB 2623, AFB 0623, AES 1225, ANV 1861, ENH 5151, WRB 1967, BRT 2987, Apollo 9975, CHN 2015, KLN 0510, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DAVID YAMPOL’S MOTION TO SUBSTITUTE HIMSELF, AS PERSONAL REPRESENTATIVE OF BARRY YAMPOL’S ESTATE, AS PLAINTIFF Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, New York 10018-1405 (212) 841-1000 One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (202) 662-6000 Attorneys for David Yampol, Personal Representative of Barry Yampol’s Estate lof 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/24/2023 TABLE OF CONTENTS Introduction Argument I Under New York Law, the Court is Required to Permit David Yampol, as Personal Representative for Barry Yampol’s Estate, to Take the Place of Decedent Barry Yampol as Plaintiff... eee Conclusion 2 0f 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/24/2023 TABLE OF AUTHORITIES Page(s) Cases Brower v. Brower, 226 A.D.2d 92 (1st Dep’t 1997) German-Am. Coffee Co. v. Johnston, 168 A.D. 31 (Ist. Dep’t 1915) Heslin v. Cnty. of Greene, 14.N.Y.3d 67 (2010) Other Authorities CPLR§ 1015 CPLR§ 1021 1,2 i 3 0f 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/24/2023 Introduction Under CPLR §§ 1015 and 1021, when a plaintiff dies, a Court is required to order the substitution of the decedent’s representative for the decedent, to permit the representative to pursue the decedent’s claims. Plaintiff Barry Yampol (the “Decedent”) passed away on June 1, 2023. His son, David Yampol, has been appointed as the Personal Representative of Barry Yampol’s Estate. New York law permits David Yampol, as the duly appointed representative for Decedent’s estate, to pursue Decedent’s breach of contract claims against Certain Underwriters at Lloyd’s London (the “Insurers”). The Court is therefore required to grant David Yampol’s motion to substitute himself, as Personal Representative of Barry Yampol’s Estate, as Plaintiff in the above-captioned action. Argument Under New York Law, the Court is Required to Permit David Yampol, as Personal Representative for Barry Yampol’s Estate, to Take the Place of Decedent Barry Yampol as Plaintiff. CPLR § 1015(a) states that: “Ifa party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.” A motion for substitution may be made by the representative of a party. CPLR § 1021. When a motion to substitute is made by a proper party, the Court is required to order substitution. CPLR § 1015 (stating the Court “shall order substitution of the proper parties” (emphasis added)). Barry Yampol passed away on June 1, 2023. NYSCEF 83 (Certificate of Death). On August 15, 2023, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida issued Letters of Administration appointing David Yampol the Personal Representative of Barry Yampol’s estate, with “full power to administer the Estate according to law,” including the power “to ask, demand, sue for, recover and receive the property of’ Barry Yampol. NYSCEF 84 at 1 (Letters of Administration). David Yampol, acting as Personal Representative of Barry 4o0f 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/24/2023 Yampol’s Estate, is therefore entitled under CPLR § 1021 to bring this motion to substitute himself as plaintiff in this case.! The complaint in the above-captioned action alleges that Defendants breached the terms of the contract of insurance Decedent purchased from them and seeks damages resulting from that breach. See generally NYSCEF 2; NYSCEF 82 4 6. Under New York law, breach of contract claims survive the death of a plaintiff. Heslin v. Cnty. of Greene, 14 N.Y.3d 67, 74 n.4 (2010) (“[A]II tort and contract actions that belonged to a decedent may now be maintained by the estate's personal representative.”); Brower v. Brower, 226 A.D.2d 92, 94 (1st Dep’t 1997) (“[Defendant] breached the agreement. Decedent clearly had the right to seek specific performance of the agreement at that time, a contract right which survived decedent’s death and can be enforced in an action maintained by plaintiff.”); German-Am. Coffee Co. v. Johnston, 168 A.D. 31, 33 (1st. Dep’t 1915) (“That a cause of action for the breach of a contract, whether express or implied, survives the death of the defendant, is so thoroughly settled that the citation of authorities is unnecessary.”). Conclusion Thus, since David Yampol has been duly appointed Personal Representative of Barry Yampol’s estate, and is allowed under New York law to pursue Decedent Barry Yampol’s breach of contract claim, the Court is required to grant the motion of David Yampol as Personal ' This is a motion to substitute the Decedent’s Personal Representative in an ongoing breach of contract action between a Florida Domiciliary, and insurer Defendants whose principle offices are in another country. Accordingly, it is not necessary for David Yampol to obtain ancillary letters from a New York court to pursue this action. See Deborah Kearns, N.Y. Surr. Ct. Proc. Act Law § 206 Practice Commentaries (McKinney 2021) (“[T]he situs of intangible assets is decedent's domicile at date of death.”); Jn re Est. of Baer, 46 A.D.3d 1368, 1369 (3d Dep’t 2007) (stating the situs of intangible assets is the decedent’s domicile at the time of death). 5 of 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/24/2023 Representative for Barry Yampol’s Estate and order the substitution of the Plaintiff in this action from “Barry Yampol” to “David Yampol, Personal Representative of Barry Yampol’s Estate.” Dated: New York, New York COVINGTON & BURLING LLP August 24, 2023 By: /s/ Joseph Vandegriff David A. Luttinger Jr. Joseph Vandegriff The New York Times Building 620 Eighth Avenue New York, New York 10018-1405 Telephone: (212) 841-1000 Email: dluttinger@cov.com jvandegriff@cov.com Kevin R. Glandon? One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (202) 662-60000 E-mail: kglandon@cov.com Attorneys for David Yampol, Personal Representative of Barry Yampol’s Estate > Not admitted in New York, Pro Hac Vice application submitted. 6 of 7 INDEX NO. 601285/2023 NYSCEF DOC. NO. 85 RECEIVED NYSCEF 08/24/2023 ATTORNEY CERTIFICATION PURSUANT TO NYCRR 202.8b I, Joseph Vandegriff, an attorney admitted to practice before the Courts of the State of New York, hereby certify that the word count of the attached Memorandum of Law, excluding the caption, table of contents, table of authorities and signature block is 679. Dated: New York, New York /s/ Joseph Vandegriff August 24, 2023 Joseph Vandegriff 7 of 7