`NYSCEF DOC. NO. 286
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/05/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`_______________________________________________
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`AB 511 DOE,
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`v.
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`LYNDONVILLE CENTRAL SCHOOL DISTRICT,
`LYNDONVILLE ELEMENTARY SCHOOL,
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`Defendants.
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`_______________________________________________
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`Plaintiff,
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`DECISION
`Index No. 20-46602
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`Defendant, in a motion in limine, seeks to add the alleged deceased perpetrator
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`(Houseman) to the verdict sheet pursuant to Article 16 of the CPLR. (NYSCEF 008, Point VIII).
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`Defendant argues pursuant to the Estate Powers and Trust Law (EPTL) §11-3.2, the cause of
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`action against Houseman survived his death. Therefore, defendant argues Houseman should be
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`on the verdict sheet unless plaintiff establishes that after due diligence, he was unable to obtain
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`jurisdiction over the decedent.
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`The plaintiff argues he cannot obtain jurisdiction because the decedent died over a decade
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`before the commencement of this action, the decedent had no property or assets in New York at
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`the time the action was commenced, his wife and son do not reside in New York and there was
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`never an estate created. Plaintiff counters defendant’s position that an administrator could have
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`been appointed with the argument that pursuant to the definition of an “estate” under the EPTL
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`and the Surrogates Court Procedure Act (SCPA), there is a requirement that for an estate to exist,
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`there must be property to administer. Plaintiff also argues he engaged in due diligence in
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`determining there is no property for the Surrogate Court to administer and to seek an
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`FILED: ORLEANS COUNTY CLERK 03/05/2024 10:07 AM
`NYSCEF DOC. NO. 286
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/05/2024
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`appointment of an administrator under the circumstances of this case runs afoul of the definition
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`of “estate”.
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`Though the plaintiff is correct that an “estate” refers to the property a decedent had
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`interest in or owned, (EPTL 1-2.6; SCPA 103), and that Surrogate’s Court has jurisdiction over
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`the property of the decedent, that does not define the entire jurisdiction of the Surrogate Court.
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`The Surrogate Court has “full and complete general jurisdiction in law and in equity to
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`administer justice in all matters relating to estates and the affairs of decedents, (SCPA §201 (3),
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`emphasis added). Hence, plaintiff could have petitioned Surrogate’s Court seeking an
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`administrator be appointed to accept service and represent decedent in the action pending before
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`this Court. Had such application been rejected by Surrogate’s Court, then arguably jurisdiction
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`could not have been obtained. No such proof was submitted to the court and the motion to add
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`Houseman on the verdict sheet is granted in so far as evidence is presented at trial to substantiate
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`such a determination.
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`Counsel for defendant is to prepare an Order and submit it to the Court upon approval of
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`plaintiff’s counsel. The Order shall be submitted within 30 days and shall reference and attach
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`the Court’s Decision to the Order.
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`DATED: March 4, 2024
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` Buffalo, New York
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`_____________________________
`Hon. Deborah A. Chimes, J.S.C.
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