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.
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.
CAROL R. EDMEAD, J.
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).
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 ...