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’sCivil Practice Law and Rules for a court obtaining jurisdiction over anaction “commenced” three months after the death of the individual namedas the sole defendant, we find that the order appealed from is a nullity.The complaint should have been dismissed by the motion court as anullity when the putative plaintiff, having filed a summons andcomplaint, discovered that the named defendant had died beforethe filing. As it is, this matter arrives before this Court as a resultof a volume of errors rarely seen in this Department, and which are setforth below, seriatim.

In or around July 2005, Amin Marte, incarcerated and acting prose, filed an unsigned, undated summons and complaint alleging legalmalpractice by attorney Herman Graber. Thereafter, Marte discoveredthat Graber had died on April 2, 2005, approximately three months beforethe filing of the summons and complaint. Thus the action from itsinception was a nullity since it is well established that the deadcannot 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)