Wednesday's Weird But True Legal Cases - Vol XXXII

Tonight's weird (but true) legal case analysis looks at a recent decision from the Appellate Division, First Department in Marte v. Graber. As any lawyer will tell you, sometime the trial court makes mistakes - that's why there are appellate courts. The decision in Marte v. Graber is a horse of an entirely different color.

In this matter, the plaintiff (a non-lawyer) drafted his own complaint to sue his former attorney for malpractice. Unfortunately, the attorney died before the lawsuit was filed, thus preventing the plaintiff from filing suit. Or so one would think. As noted by the Appellate Division,

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.

Rather than recommence an action against the personal representative of Graber's estate, the Plaintiff moved for and obtained two extensions of time to serve the estate. This was the first of the trial court's errors, since it "adjudicated a nullity apparently unaware that time was not the problem in a case where the only named defendant could never be served with the summons and complaint, however long the plaintiff was given to do so."

After finding out the identity of the representative, the plaintiff (now represented by counsel) moved to substitute the representative of the estate as a defendant. As explained by the Appellate Division:

The motion court, compounding its errors, continued to adjudicate the nullity by granting the motion, and thus ignoring the requirement of CPLR 1015(a) that an action be pending for the correct application of that provision. CPLR 1015(a) provides that “[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties” (emphasis added). Moreover, CPLR 1021 provides that “[a] motion for substitution may be made by the successors or representatives of a party or by any party” (emphasis added). The term “party” plainly indicates that an action has already been properly commenced and is pending and thus the court may effect substitution.

In this case, since the summons and complaint were filed after the death of Herman Graber, Marte had not properly commenced an action against Graber, and so Graber was never a party in the proceeding captioned Amin Marte v. Herman I. Graber, Index No. 402200/05. Thus, there was no party for whom substitution could be effected pursuant to CPLR 1015(a).

Likewise, Marte's attempt to amend the summons pursuant to CPLR 305(c) was made in error. That provision is generally used to correct an irregularity, for example where a plaintiff is made aware of a mistake in the defendant's name or the wrong name or wrong form is used. But it is axiomatic that a motion for leave to amend follows service of process. In this case, of course, process was never served on Herman Graber (nor are we aware of any method for serving with process those who have moved beyond the vale). Thus, effectively there was no summons for amendment.

To her credit, the representative of the estate attempted to educate the trial court and moved to reargue the motion. Although the trial court allowed reargument it "ignored Sandra Graber's contention that the proceeding was a nullity from its inception. Incomprehensibly so, since the court's decision of August 14, 2007, bearing the caption of Amin Marte against Sandra Graber, clearly reflected the fact that Herman Graber had died on April 2, 2005, and that the only summons and complaint filed in this case had been filed on July 6, 2005."

To see the full text of the decision, click here http://www.nycourts.gov/reporter/3dseries/2008/2008_08552.htm .

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