In this estate case, the plaintiff, a resident of Bronx County, was a passenger in one of the two motor vehicles involved in the accident and the deceased defendant was the owner and operator of the other vehicle. Two parties were originally named as defendants because the plaintiff did not realize that two individuals, referred to in the accident report were one and the same person. The defendant’s vehicle was registered in Ohio but he was operating the vehicle with a New York driver’s license, listing a New York address for him. The decedent’s death certificate, which was issued in Ohio, states that he resided in Ohio on the date of his death.
The movant contends that, since the insurance carrier neither transacts business nor has an office in New York, the Bronx County Surrogate’s Court lacked subject matter jurisdiction to issue even limited letters of administration in the estate of the nondomiciliary (Ohio) defendant. The movant also contends that “since an administrator has not been properly appointed for decedent’s estate” the complaint must be dismissed because personal injury jurisdiction was not properly obtained over the deceased defendant by serving process upon the improperly appointed administrator.
A Bronx County Estate lawyer said that the decedent on the date of the accident, June 7, 1996, was operating a vehicle in New York with a New York driver’s license stating that he was a resident of New York; the decedent’s insurance policy obligated the insurer to defend him in a New York action in the event that he was sued for negligently operating his motor vehicle in New York; the plaintiff in the first action commenced against the decedent on December 9, 1998 attempted to obtain jurisdiction over the defendant by serving the Secretary of State; the insurance carrier did not advise the plaintiff and the court in which the first action was pending until June 2000 that the decedent had died on July 7, 1998, prior to the commencement of that action; the Supreme Court dismissed the first complaint on the ground that an action cannot be commenced against a deceased person by service upon the Secretary of State; no fiduciary had been appointed for the decedent in any jurisdiction in the approximately 29 months that had elapsed from the date of the decedent’s death to December 5, 2000, the date that the petition for the issuance of temporary limited letters of administration was filed in this court; process in the pending action was served on the Public Administrator as the administrator of the estate of the decedent on December 6, 2000, allegedly one day before the action would have been time-barred; and the instant motion was not made returnable until approximately seven months had elapsed from the date that the movant filed its answer, alleging as an affirmative defense “That this Court [Supreme Court] lacks jurisdiction over the person or property of the answering defendants in that the service of process was not made in accordance with the provisions of the law.”
The movant concedes that the alleged tortious act of the decedent in this jurisdiction made him subject to the jurisdiction of the New York courts (CPLR 302 [a] ) and that his insurance carrier would have been obligated to defend against the negligence action in this jurisdiction if the Secretary of State had been served with process prior to the decedent’s death, or if process had been served without the state upon a fiduciary who had been appointed for the decedent’s estate in Ohio (CPLR 313).
SCPA 206 (1), which provides that the “surrogate’s court of any county has jurisdiction over the estate of any non-domiciliary decedent who leaves property in the state,” governs this case. The term “property” is defined in SCPA 103 (44) as “[a]nything that may be the subject of ownership and is real or personal property, or is a chose in action.” A “chose in action” has been defined as broadly as “[a] right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty”. The obligation of the insurer to defend an action brought against the decedent in New York for a tort allegedly committed by him in New York is property or a chose in action of the bike decedent that is deemed to be situated in New York.
To Be Cont…
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