November 14, 2008
Suing The Dead
A complaint and summons alleging legal malpractice filed after an attorney's death was properly dismissed, according to an opinion of the New York Appellate Division for the First Judicial Department:
Because there simply is no precedent nor any support in New York's Civil Practice Law and Rules for a court obtaining jurisdiction over an action "commenced" three months after the death of the individual named as the sole defendant, we find that the order appealed from is a nullity. The complaint should have been dismissed by the motion court as a nullity when the putative plaintiff, having filed a summons and complaint, discovered that the named defendant had died before the filing. As it is, this matter arrives before this Court as a result of a volume of errors rarely seen in this Department, and which are set forth below, seriatim.
In or around July 2005, Amin Marte, incarcerated and acting pro se, filed an unsigned, undated summons and complaint alleging legal malpractice by attorney Herman Graber. Thereafter, Marte discovered that Graber had died on April 2, 2005, approximately three months before the filing of the summons and complaint. Thus the action from its inception was a nullity since it is well established that the dead cannot be sued.
"A volume of errors rarely seen" may fairly be characterized as something less than a ringing endorsement of the court below. (Mike Frisch)
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