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Bojanovich v. Woitach

Supreme Court of New York, New York County

June 3, 2013

Matteo Haplern BOJANOVICH as Proposed Administrator of the Estate of Marcelle P. Halpern, pursuant to E.P.T.L Section 5-4.1, Subdivision 1, Plaintiff,
Terry WOITACH, Seniorbridge Family Companies, Inc., John Does 1-10, Jane Does 1-10, XYZ Corporations, 1-10, Defendant. No. 158536/2012.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Ballon Stoll Bader & Nadler, P.C., New York, for Plaintiff.

Kramer & Dunleavy L.L.P., New York, for Defendant Terry Woitach.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, for Defendant Seniorbridge.


Plaintiff Matteo Halpern Bojanovich (" plaintiff" ) as proposed administrator of the Estate of Marcelle P. Halpern (" Halpern" ) pursuant to EPTL § 5-4.1, subdivision 1 commenced this action alleging, inter alia, wrongful death of Halpern, breach of fiduciary duty, and loss of consortium.

Defendant Terry Woitach (" Woitach" ) now moves to dismiss the causes of action pursuant to CPLR 3211(a)(3) for lack of capacity to sue and for sanctions. Defendant SeniorBridge Family Companies, Inc. (" SeniorBridge" ) cross moves for the same relief, and for dismissal pursuant to CPLR 3211(a)(7).

Factual Background

By order dated July 12, 2010 (Hon. Anil C. Singh), plaintiff and Lenore Kramer (" Kramer" ) were appointed as a temporary co-guardians of Halpern.

Kramer asserts that she engaged Woitach, an independent contractor, as the geriatric care manager for Halpern. Woitach allegedly receives referral clients from SeniorBridge, although Kramer did not engage Woitach through SeniorBridge and SeniorBridge had no connection to Halpern.

Upon Halpern's death on December 3, 2010, Kramer's appointment ended, and accountant Richard Kaufman (" Kaufman" ) was named as the executor of Halpern's estate pursuant to the terms of Halpern's Last Will and Testament. Kaufman received Preliminary Letters Testamentary from the Surrogate's Court on January 5, 2011.

In support of dismissal, and based on the foregoing, Kramer argues that given that plaintiff is neither the representative of the estate of Halpern nor a distributee of her estate, he lacks standing to bring this action under the EPTL section he cites. Further, since the action is completely devoid of merit, sanctions against plaintiff for his frivolous conduct in bringing this action is warranted. Plaintiff has been aware of the appointment of an Executor for Halpern's estate, and knew that he had no legal standing to bring this action but brought this action anyway to harass defendants.

SeniorBridge joins in Kramer's application, and adds that as attested to by Michael Allen (SeniorBridge's Chief Financial Officer), and consistent with Kramer's contention, at no time did SeniorBridge arrange for, coordinate, dispatch or provide services or treatment of any kind to Halpern. Halpern was never a client of SeniorBridge.

In opposition, plaintiff argues that Woitach's motion is premature. Plaintiff merely served a summons with notice, and Woitach failed to serve Demand for Complaint pursuant to CPLR 3012(b). In the absence of a complaint, the summons and notice cannot be dismissed pursuant to CPLR 3211, which requires a review of a complaint. Further, the doctrine of equitable adoption grants plaintiff standing to bring this wrongful death action. Plaintiff maintains that courts have construed the doctrine of equitable adoption to confer upon an equitable adoptee the economic rights of biological issue, including the right to intestate succession in the equitable parent's estate. Therefore, equitable adoptees may be considered " distributees" of a parent to the same extent as adoptive and biological issue.

As to SeniorBridge, plaintiff contends that SeniorBridge also moved to dismiss without serving a Demand for Complaint pursuant to CPLR 3012(b). Further, according to certain websites, Woitach is associated with SeniorBridge as a Care Manager, and entries dated November 15, 2010 and November 17, 2010 (approximately two weeks before Halpern's death) on a Bowel Movement log on SeniorBridge letterhead show that SeniorBridge's nurses were caring for Halpern. Neither defendant submitted any documentation showing in what capacity Woitach was hired as an " independent contractor," and additional discovery will prove that SeniorBridge was in fact caring for Halpern. It is premature to determine whether SeniorBridge exercised any control over Woitach's care of Halpern. Plaintiff also points out that Kramer as co-guardian is admittedly familiar with the care Halpern received, and hired Woitach, and thus could be called as a witness in this action. Thus, Kramer should be removed as counsel for Woitach.

Plaintiff also argues that sanctions are unwarranted in light of the above.

In reply, Woitach argues that EPTL does not permit a " proposed" fiduciary to bring a wrongful death action and plaintiff's theory does not cure his lack of standing. Even if plaintiff were the biological son of decedent, he would still lack standing as there is already a duly appointed estate representative, which has the sole exclusive right to bring this suit. A duly appointed administrator in a wrongful death action is a condition precedent to suit and an essential element of the claim. Plaintiff has referred to himself in two related actions as Halpern's stepson, and the cases plaintiff cites do not indicate that an equitably adopted child has a right to bring a wrongful death action.

SeniorBridge adds that Woitach is a part-time care manager for SeniorBridge but also has her own independent clients that have no affiliation with SeniorBridge. Woitach has access to SeniorBridge's forms and apparently used one for her independent client without SeniorBridge's knowledge or approval.


EPTL § 5-4.1, subdivision 1, entitled " Action by personal representative for wrongful act, neglect or default causing death of decedent" provides:

The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.... When the distributees do not participate in the administration of the decedent's estate under a will appointing an executor who refuses to bring such action, the distributees are entitled to have an administrator appointed to prosecute the action for their benefit.
" It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration ( Carrick v. Central General Hosp., 51 N.Y.2d 242, 249, fn. 2, 414 N.E.2d 632 [1980] ). " A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent's distributees on account of his or her death" ( Mingone v. State, 100 A.D.2d 897, 474 N.Y.S.2d 557 [2d Dept 1984] citing EPTL 1-2.13, 5-4.1, subd. 1; 11-3.2, subd. [b] ).

Here, it is uncontested that plaintiff has not received any letters of administration, and that instead, Kaufman was named as the executor of Halpern's estate. Since EPTL § 5-4.1 is in derogation of common law, it must be strictly construed ( Gonzalez v. New York City Housing Auth., 77 N.Y.2d 663, 572 N.E.2d 598 [1991] ). Therefore, plaintiff lacks standing to pursue the causes of action asserted in the summons.

Contrary to plaintiff's contention, the application to dismiss pursuant to CPLR 3211(a)(3) is not premature due to the absence of a complaint. CPLR 3211 begins with the provision that " A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: ... 3. the party asserting the cause of action has not legal capacity to sue...." (Emphasis added). Pursuant to CPLR 3211(e), " a party may move on one or more of the grounds set forth in subdivision (a)" " [a]t any time before service of the responsive pleading is required." Subsection (e) further provides that " [a]ny objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading." Thus, the time within which to move for dismissal pursuant to CPLR 3211(a)(3) is measured, not against the filing of the complaint, or demand thereof, but against the time within which a responsive pleading is required. No responsive pleading was required at the time of the instant motion was filed. Therefore, the application to dismiss pursuant to CPLR 3211(a)(3) is not premature.

The cases cited by plaintiff for the proposition that a CPLR 3211 motion is premature in the absence of a complaint are distinguishable, in that such cases involved dismissal based on the failure to state a cause of action, which is addressed to the sufficiency of a complaint ( Petrova v. Investors Capital, 24 Misc.3d 977, 879 N.Y.S.2d 908 [Supreme Court, Kings County 2009] (" Because a complaint has not been served, the court has no factual allegation to review so as to permit it to determine whether plaintiffs have any cognizable causes of action" ); NGH Assoc., Ltd. v. United Parcel Serv., Inc., 17 Misc.3d 746, 842 N.Y.S.2d 896 [Supreme Court, Nassau County 2007] (quoting CPLR 3211(a)(7) and holding that a summons with notice is not a pleading" )).

It is noted that there " is a sharp difference between an absence of a capacity to sue and absence of right to any relief. The classic definition of the distinction in New York was given by Vann, J., in Ward v. Petrie, 157 N.Y. 301, 311, 51 N.E. 1002, 1006: Incapacity to sue is not the same as insufficiency of facts to sue on.' A lack of capacity to sue' essentially means a plaintiff is denied access to a court. Every citizen has the legal capacity to sue every other citizen excepting only when prevented by such personal disabilities as infancy or adjudicated incompetency; and the right exists without reference to the title or status of the plaintiff or of the defendant. A person having a capacity to bring a lawsuit may bring it, as Judge Vann noted, and get the defendant into court by the service of a summons' even if he had no cause of action' " ( Field v. Allen, 9 A.D.2d 551, 189 N.Y.S.2d 489 [3d Dept 1959]; see also Carrick v. Central General Hospital, 51 N.Y.2d 242, 414 N.E.2d 632 [1980] (" Like any condition precedent, the requirement of a qualified administrator in a wrongful death action, while essential to the maintenance of the suit, is in no way related to the merits of the underlying claim" )).

Therefore, the absence of any complaint, or demand for a complaint, does not deprive defendants from seeking dismissal based on the lack of capacity to sue.

Nor does the " equitable adoptee" theory save the plaintiff's claims. An " adoptee is considered the same as a natural child and his or her distributees are determined from those related in the adoptive family" ( Estate of Riggs, 109 Misc.2d 644, 440 N.Y.S.2d 450 [Surrogate's Court, New York County, New York 1981] ). The term " equitable adoption" has been described as follows:

[A]n oral agreement to adopt, where there has been a full and faithful performance on the part of the adoptive child, but which was never consummated by formal adoption proceedings during the life of the adoptive parent, will, upon the death of the latter, and when equity and justice so requires, be enforced to the extent of decreeing that such child occupies in equity the status of an adopted child, entitled to the same right of inheritance from so much of his foster parent's estate that remains undisposed of by will or otherwise, as he would have been had he been a natural born child."
Estate of Riggs, supra 440 N.Y.S.2d 450

Therefore, the doctrine essentially aims to confer the rights and privileges of a natural born child upon a purported adopted child provided certain elements are satisfied. When applied, it simply equalizes the purported adoptive child rights to those of a natural born child. Therefore, even assuming plaintiff has a claim for equitable adoptee status, he gains no more rights than that of a natural born child, who also would, if lacking in letters of administration, lack standing to pursue the wrongful death and other causes of action herein.

None of the numerous cases cited by plaintiff addressing the equitable adoption theory go so far as to create standing to sue for wrongful death upon an equitable adoptee who was not duly appointed by a court as a personal representative ( cf. Matter of Baby Boy C., 84 N.Y.2d 91, 615 N.Y.S.2d 318 [1994] (considering an equitable adoption so as to compel appellant to complete the adoption of the children); Gavin v. Aitken, 258 N.Y. 595 [1932] (reinstating a complaint seeking to enforce the agreement of adoption in equity in so far as it related to plaintiff's property rights in the residuary estate of her foster mother, and in the estate of her foster father); Levinson v. Mayerowitz, 181 Misc. 526, 41 N.Y.S.2d 835 [Supreme Court, Queens County] (declining to dismiss a suit for specific performance of an oral agreement to adopt plaintiff and give him the same interest as a son would inherit pursuant to the Statute of Distribution in whatever property the deceased spouses possessed at death); Matter of Mazzeo, 95 A.D.2d 91, 466 N.Y.S.2d 759 [3d Dept 1983] (equitable adoption is viewed in New York as a type of contract to make a will provision; petitioner is a creditor of the estate and as such, has " no standing to vacate the decree granting letters of administration to respondent but is entitled to pursue instead his claim against the estate as a creditor" ); Estate of Irene Osborne, 2007 N.Y. Misc. LEXIS 2442, *; 237 N.Y.L.J. 63 (involving a petition to remove a co-administrator on the ground that co-administrator was never legally adopted)).

And, unlike EPTL § 5-4.1 herein, the wrongful death statutes in other cases cited by plaintiff were either a remedial statute not in derogation of common law ( cf. Holt v. Burlington Northern R. Co., 685 S.W.2d 851 [Mo. Ct.App. W.D.1984] ) or granted an express right to a natural or adopted child to commence suit ( Crawford v. Cooper/T. Smith Stevedoring Co., Inc., 14 F.Supp.2d 202 [District Rhode Island 1998] (citing to the provision in the wrongful death statute (NRS 12.090) defining an " heir" that may sue as including any person entitled to inherit the estate of a decedent); see Nevada Paving, Inc. v. Callahan, 83 Nev. 208, 212, fn. 1, 427 P.2d 383 [1967] ).

Therefore, having failed to overcome defendants' showing that plaintiff lacks legal capacity to pursue the causes of action in the summons, the summons is hereby dismissed.[1]

However, sanctions against plaintiff are unwarranted. It is noted that while defendants' motions for dismissal of plaintiff's causes of action are warranted, such finding, does not necessarily automatically entitle defendants to sanctions herein ( see Nolan & Co. v. Daly, 170 A.D.2d 320, 566 N.Y.S.2d 253 [1st Dept 1991] (" Although we find petitioners' argument unpersuasive, we do not find it to be so completely without merit as to be frivolous" )). Bringing his claims is not so egregious as to warrant sanctions ( Costanza v. Seinfeld, 279 A.D.2d 255, 719 N.Y.S.2d 29 [1st Dept 2001] (" Although plaintiff's arguments are not persuasive, they constitute reasonable invitations to the motion court and this Court to extend existing law to an unusual fact pattern" )).[2]


Based on the foregoing, it is hereby

ORDERED that the motion by defendant Terry Woitach to dismiss plaintiff's causes of action pursuant to CPLR 3211(a)(3) for lack of capacity to sue and for sanctions, and the cross-motion by SeniorBridge Family Companies, Inc. for dismissal pursuant to CPLR 3211(a)(3) and CPLR 3211(a)(7) for failure to state a cause of action, is granted solely to the extent that the plaintiff's claims in the summons with notice are dismissed pursuant to CPLR 3211(a)(3); and it is further

ORDERED that plaintiff defendant Terry Woitach shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

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