New York State Court of Claims

New York State Court of Claims
NASH v. ROSWELL PARK CANCER INSTITUTE CORPORATION, # 2021-053-543, Claim No. 130860, Motion No. M-97089


Defendant's order to show cause seeking a stay of the claim and the scheduled liability trial due to the death of the claimant's husband is denied. Pursuant to CPLR 1015, the death of the claimant's husband, whose claim is solely derivative, does not affect merits of pending claim because of the clear identity of interest. Defendant's alternative relief seeking brief extension to move for summary judgment is granted.

Case information

UID: 2021-053-543
Claimant short name: NASH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130860
Motion number(s): M-97089
Cross-motion number(s):
BY: Gregory P. Krull, Esq.
Defendant's attorney: ROACH, BROWN, McCARTHY & GRUBER, P.C.
BY: J. Mark Gruber, Esq.
Third-party defendant's attorney:
Signature date: September 2, 2021
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants Mary Lou Nash and Robert Nash filed a notice of claim with the Clerk of the Court on January 18, 2018, and a claim on July 11, 2018.(1) The claim alleges that on November 3, 2017, Mrs. Nash tripped and fell over the base of a statue in the lobby at Roswell Park Cancer Institute Corporation (Roswell), sustaining injury. Claimants allege that the statue was a dangerous condition and that Roswell was negligent in creating that dangerous condition. The claim also includes a derivative cause of action on behalf of Mr. Nash. Defendant filed its answer to the claim on July 23, 2018.

On April 15, 2021, claimants filed their note of issue and certificate of readiness for trial. On April 19, 2021, a conference was conducted by the Court's Confidential Law Clerk, during which defendant's counsel indicated that defendant may move for summary judgment. Also at that conference, claimant's counsel informed the Court and defendant's counsel that Mr. Nash had died on May 23, 2020. Following the April 19, 2021 conference, an order was issued scheduling the bifurcated liability trial of this claim to begin on January 10, 2022.

At a status conference with the Court on August 12, 2021, the summary judgment motion deadline was discussed.(2) Defendant's counsel expressed his belief that both the claim and the summary judgment motion deadline were stayed pending substitution of a representative of Mr. Nash's estate as a party. The Court informed counsel that the claim was not stayed and that the summary judgment motion deadline remained August 13, 2021.

On August 17, 2021, this Court signed an order to show cause submitted by defendant seeking the following relief: (1) pursuant to CPLR 1015, a stay of the claim, including the summary judgment motion deadline, pending the substitution of a representative of the estate of Mr. Nash; (2) pursuant to CPLR 1021, dismissal of the claim based upon the alleged failure to timely substitute a representative of Mr. Nash's estate; or (3) pursuant to CPLR 3212 (a), a 60-day extension of the deadline to file and serve defendant's summary judgment motion. The Order to Show Cause was returnable before this Court on August 30, 2021. After hearing oral argument from counsel, the Court will grant the Order to Show Cause, in part, as detailed below.

Defendant argues that the claim and the summary judgment motion deadline are automatically stayed by the death of Mr. Nash until such time as his estate is substituted as a party. "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" (Neuman v Neumann, 85 AD3d 1138, 1139 [2d Dept 2011]). "However, if a party's death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution" (Nationstar Mtge., LLC v Azcona, 186 AD3d 614, 615-616 [2d Dept 2020]). Courts have held that the death of a derivative plaintiff does not affect the merits of a case where the surviving plaintiff has a clear identity of interest with the decedent (see Caruana v Padmanabha, 77 AD3d 1307 [4th Dept 2010]). In that instance, the filing of a note of issue after the death of a party is not a nullity (see Paterno v CYC, LLC, 46 AD3d 788, 789 [2d Dept 2007]).

The Court finds that here, the death of the derivative claimant did not affect the merits of the pending claim because there is a clear identity of interest between Mr. and Mrs. Nash. Mr. and Mrs. Nash are the only two claimants and Mr. Nash's cause of action is solely derivative. Mrs. Nash testified that her husband began showing signs of Alzheimer's disease in 2008, and that at the time of her fall on November 3, 2017, she served as his primary caretaker (Affirmation in Opposition of Gregory P. Krull, affirmed August 24, 2021, exhibit A [General Municipal Law 50-h examination of Mary Louise Nash on April 24, 2018], pp 60-61 and exhibit B [examination before trial of Mary Louise Nash on November 18, 2019] p 52). During discovery, defendant did not elect to take testimony from Mr. Nash. According to claimant's counsel, Mr. Nash's will names his wife as the executrix of his estate. Claimant's counsel has represented that Mrs. Nash is in the process of petitioning Niagara County Surrogate Court to be appointed as the executrix of her late husband's estate so that letters testamentary may be issued and she can prosecute this claim on behalf of his estate. Once the letters have been issued, Claimant's counsel will substitute the estate as a party to this claim so that the liability trial may proceed as scheduled. The Court finds that the interests of Mr. and Mrs. Nash in pursuing this claim are united and that, as such, the claim and the summary judgment motion deadline need not be stayed pending the substitution.

The Court finds that defendant has demonstrated good cause for the delay in timely moving for summary judgment, which warrants a brief extension of the deadline (see CPLR 3212 (a); Brill v City of New York, 2 NY3d 648 [2004]). Defendant's good faith belief that the death of a party would automatically stay the claim and the summary judgment motion deadline until such time as Mr. Nash's estate was substituted as a party is not unreasonable and was only dispelled by the Court at a conference the day before the deadline was set to expire. So that the motion may be decided before the January 10, 2022 trial date, the Court will extend defendant's deadline for moving for summary judgment to September 22, 2021.

The alternative requests for relief in the Order to Show Cause are denied. The claim is not stayed for the reasons explained above. The Court declines to dismiss the entire claim based upon claimant's alleged failure to timely substitute the estate as a party for Mr. Nash. CPLR 1021 provides that if substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made. Given that Mr. Nash died during a global pandemic when the deadlines for commencing legal actions were stayed,(3) the Court does not find that there has been an inordinate delay in substituting the estate as a party in this claim. The Court finds further that defendant's counsel's statement that Roswell has been prejudiced by the delay in substituting the estate as a party is conclusory. The Court directs claimant to proceed expeditiously with the appointment of a representative of her late husband's estate and a substitution in this claim. Based upon the foregoing, it is hereby

ORDERED, that defendant's deadline to file and serve a summary judgment motion is extended to September 22, 2021, and said motion shall be returnable before the Court on October 13, 2021; and it is further

ORDERED, that all other requests for relief in the Order to Show Cause are denied; and it is further

ORDERED, that claim nos. 130860 and 131695, which involve common questions of law and fact, and the same alleged negligence, parties, and counsel, are hereby consolidated under claim no. 130860.

September 2, 2021

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Order to Show Cause, dated August 17, 2021, filed August 18, 2021;

2. Attorney Affirmation of J. Mark Gruber, Esq. dated August 13, 2021, filed August 18, 2021 with attached exhibits; and

3. Affirmation in Opposition of Gregory P. Krull, Esq. affirmed August 24, 2021, filed August 24, 2021, with attached exhibits.

1. There is no requirement that the notice of claim be filed. When the notice of claim was submitted for filing the Clerk's Office treated it as a claim and assigned a claim number, 130860. When claimants filed their claim later that year, it was assigned a separate claim number by the Clerk's Office, 131695. The Court will order that the claims be consolidated under claim no, 130860 pursuant to CPLR 602 (a) and Court of Claims Act 9 (5) (see HCE Associates v 3000 Watermill Lane Realty Corp., 173 AD2d 774 [2d Dept 1991][court may grant relief pursuant to general prayer of relief other than what was specifically requested as warranted by the facts]).

2. Pursuant to CPLR 3212 (a), unless otherwise ordered by the Court, parties have 120 days from the filing of the note of issue to move for summary judgment. Summary judgment motions may be made after the 120 days have expired with leave of court and good cause shown (id.).

3. Governor Cuomo's Executive Order 202.8 tolled the deadline for the commencement of actions beginning on March 20, 2020. That toll was continued monthly by subsequent Executive Orders to November 3, 2020 (see Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55.1, 202.60 and 202.67). As of November 4, 2020, the toll is no longer in effect (see Executive Order 202.72