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New York Appellate Court Discusses Appointment of a Fiduciary

It is not logical to conclude that the laws of New York facilitate the commencement of actions in this jurisdiction against living nonresidents for their negligent operation of a motor vehicle in this jurisdiction by authorizing the Secretary of State to be served with process as their agent but require injured New Yorkers to be burdened with the cost and delay of petitioning for the appointment of a fiduciary in the domiciliary state of deceased tortfeasors in those cases where no other interested party has made any such application in that jurisdiction. In any such proceeding it is unlikely that the petitioner will receive any cooperation from either the tortfeasor’s beneficiaries or insurance carrier.

The appointment of a fiduciary in this jurisdiction is in no way prejudicial to the rights of the estate of the nondomiciliary or to the insurance carrier. The estate is not prejudiced because the letters are limited to defending against the negligence action to the extent that the defense and payment are covered by the terms of the insurance policy. The insurer is not prejudiced because the coverage is not increased by one penny and because the insurer would be required to provide the same coverage in an action commenced in New York even if the fiduciary had been appointed and served with process in the domiciliary state of the defendant.

Furthermore, New York is not treating deceased nondomiciliary tortfeasors any differently than it treats New York deceased tortfeasors. Where no other interested party has sought to be appointed the fiduciary, the New York courts, both Surrogate’s and Supreme, frequently issue limited letters of administration in the estates of deceased New York tortfeasors to the Public Administrator, or to another nominee including counsel for the insurer, the real interested party, limited to the bicycle insurance coverage.

To the extent that either previous cases might be interpreted as requiring a greater nexus to this jurisdiction than that the tort was committed within its boundaries and that there is insurance coverage obligating the insurer to defend against the tort action commenced in New York, the following additional factors are present in this case: the decedent was operating the vehicle with a New York license which indicated that he was a New York resident; the insurer permitted the first action to be pending in a New York court for approximately 18 months before notifying the plaintiff and the court that its insured had died prior to the commencement of the action; and notwithstanding that the insurer asserts that it neither has an office nor transacts business in New York, it has not denied the allegation that it has been authorized to transact business in New York since May 1, 1979.

The determination that this personal injury court had subject matter jurisdiction to issue temporary limited letters of administration to the Public Administrator renders it unnecessary to discuss at length many of the other issues which would be worthy of serious consideration before the instant motion could be granted, including the following: whether the movant waived the right to assert lack of personal injury jurisdiction by failing to move to dismiss on this ground within 60 days of the service of its answer; whether there is a factual issue with regard to whether the decedent was a nondomiciliary in light of his New York driver’s license; whether the defendant’s questioning its own status as the fiduciary in a motion before the Supreme Court, instead of the insurer instituting a proceeding before this court pursuant to SCPA 712 for the revocation of the letters issued by this court, constitutes an impermissible collateral attack on the authority of the Public Administrator; and whether, even if the court should not have appointed the Public Administrator with limited powers, the proper remedy would be to have a duly appointed fiduciary substituted as the defendant rather than dismissing the complaint. Of course, if the action was suspended instead of dismissed until a new fiduciary was appointed, this would defeat the movant’s argument that the action is now time-barred. Inasmuch as this court has denied the motion that was transferred to it, the action may proceed in the Supreme Court, Bronx County, pursuant to the rules of that court.

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