FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 2
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
`NYSCI
`EF DOC. NO. 289
`NYSCEF DOC. NO. 289
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`INDEX NO. 20-46602
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF:
`03/13/2024
`RECEIVED NYSCEF: 03/13/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`
`AB 511 DOE,
`
`Vv.
`
`Plaintiff,
`
`LYNDONVILLE CENTRAL SCHOOLDISTRICT;
`LYNDONVILLE ELEMENTARY SCHOOL.
`
`Defendants.
`
`
`ORDER
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`index No.: 20-46602
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`WHEREAS, Defendants Lyndonville Central School District and Lyndonville
`
`Elementary School
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`(collectively referred to as “the District’), by and through their
`
`attorneys, Webster Szanyi LLP, filed a motion in fimine seeking to add Terry Houseman
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`to the verdict sheet for purposes of apportioning potentialliability pursuant to Article 16 of
`
`the CPLR (see Doc. 184-197); and
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`WHEREAS,in support of that motion, the District submitted a Notice of
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`Motion dated February 9, 2024 (Doc. 184), Affirmation of Ryan G. Smith dated February
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`9, 2024, with Exhibits A-K (Doc. 185-196), and Memorandum of Law dated February 9,
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`2024 (Doc. 197); and
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`WHEREAS,in opposition to the motion, Plaintiff AB 511 Doe filed an
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`Affirmation of Leah Costanzo dated February 19, 2024, with Exhibits A-J (Doc. 243-253):
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`and
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`WHEREAS,in further support of that motion, the District submitted a Reply
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`Affirmation of Ryan G Smith dated February 22, 2024, with Exhibit A (Doc. 280-281), and
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`a Reply Memorandum of Law (Doc. 282). and
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`WHEREAS, the Court having heard oral argument on the motion on
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`1
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`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
`NYSCI
`EF DOC. NO. 289
`NYSCEF DOC. NO. 289
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`INDEX NO. 20-46602
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`INDEX NO. 20-46602
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`
`
`RECEIVED NYSCEF:
`03/13/2024
`RECEIVED NYSCEF: 03/13/2024
`
`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`
`AB 511 DOE,
`
`Vv.
`
`Plaintiff,
`
`LYNDONVILLE CENTRAL SCHOOLDISTRICT;
`LYNDONVILLE ELEMENTARY SCHOOL.
`
`Defendants.
`
`
`ORDER
`
`index No.: 20-46602
`
`WHEREAS, Defendants Lyndonville Central School District and Lyndonville
`
`Elementary School
`
`(collectively referred to as “the District’), by and through their
`
`attorneys, Webster Szanyi LLP, filed a motion in fimine seeking to add Terry Houseman
`
`to the verdict sheet for purposes of apportioning potentialliability pursuant to Article 16 of
`
`the CPLR (see Doc. 184-197); and
`
`WHEREAS,in support of that motion, the District submitted a Notice of
`
`Motion dated February 9, 2024 (Doc. 184), Affirmation of Ryan G. Smith dated February
`
`9, 2024, with Exhibits A-K (Doc. 185-196), and Memorandum of Law dated February 9,
`
`2024 (Doc. 197); and
`
`WHEREAS,in opposition to the motion, Plaintiff AB 511 Doe filed an
`
`Affirmation of Leah Costanzo dated February 19, 2024, with Exhibits A-J (Doc. 243-253):
`
`and
`
`WHEREAS,in further support of that motion, the District submitted a Reply
`
`Affirmation of Ryan G Smith dated February 22, 2024, with Exhibit A (Doc. 280-281), and
`
`a Reply Memorandum of Law (Doc. 282). and
`
`WHEREAS, the Court having heard oral argument on the motion on
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`1
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`1 of 5
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`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 A
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
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`NYSCE
`.
`.
`YSCEF DOC.
`NO.
`289
`NYSCEF DOC. NO. 289
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` E
`- 20-46602
`INDEX NO
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/13/2024
`RECEIVED NYSCEF: 03/13/2024
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`February 26, 2024, with Leah Costanzo appearing on behalf of Plaintiff, and Ryan G.
`Smith and Shannon B. Vandermeer appearing on behalf of the District: and
`
`the papers, pleadings, and materials
`NOW, upon consideration of all
`submitted by the parties, and due deliberation having been had, and after such due
`deliberation, the Court having issued a written decision (Doc. 286) dated March 4, 2024,
`and entered on March 5, 2024, a copy of which is attached hereto as Exhibit A,it is
`hereby:
`
`ORDERED,thatthe District's motion to add Housemanontheverdict sheet
`
`is GRANTEDprovided that evidence is presented attrial substantiating that Houseman
`is the alleged abuser.
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`Dated: March 13, 2024
`GRANTED:
`
`ENTERED:
`
`‘Mee we,
`Hon. Deborah A. Chimes
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`Ea LED:ae COUNTY CLERK 03/13/2024 10:33
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
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`NYSCEF DOC. NO. 289
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`INDEX NO. 20-46602
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`INDEX NO. 20-46602
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` EIVE
`REC
`DINDERC HO. 93448¢e924
`RECEIVED NYSCEF: 03/13/2024
`RECRIVED NYSCEF: 03/11/2024
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`EXHIBIT A
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`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33
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`INDEX NO. 20-46602
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
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`N@ELEDsc ORLEANS COUNTY CLERK 03/08/2024 00:02
`RECEIVED 1NEERENG . Sdtade0
`NYSCEF DOC. NO. 289
`RECEIVED NYSCEF: 03/13/2024
`NYSCEF DOC. NO, 286
`RECEIVED NYSCEF: 03/05/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`
`
`AB 511 DOE,
`
`v.
`
`Plaintiff,
`
`LYNDONVILLE CENTRAL SCHOOL DISTRICT,
`LYNDONVILLE ELEMENTARY SCHOOL,
`
`Defendants.
`
`
`DECISION
`Index No. 20-46602
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`Defendant, in a motion in limine, seeks to add the alleged deceased perpetrator
`(Houseman) to the verdict sheet pursuant to Article 16 ofthe CPLR. (NYSCEF 008,Point VIID.
`Defendantargues pursuant to the Estate Powers and Trust Law (EPTL) §11-3.2, the cause of
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`action against Housemansurvived his death. Therefore, defendant argues Houseman should be
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`on the verdict sheet unlessplaintiff 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 cannotobtain jurisdiction because the decedent died over a decade
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`before the commencementofthis 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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`neveran estate created. Plaintiff counters defendant’s position that an administrator could have
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`been appointed with the argumentthat 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 engagedin duediligencein
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`determining there is no property for the Surrogate Court to administer and to seek an
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`NYSCEF aco NO, 288 RECEIVED NYSCEF: 03/04/2024
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33
`INDEX NO. 20-46602
`INDEX NO. 20-46602
`FILED: ORLEANS COUNTY CLERK 03/13/2024 10:33 AM
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`RECEIVED WW¥SCHE: 9814¢¢@924
`7/05/2024 08:62
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`RECEIVED NYSCEF: 03/13/2024
`NYSCEF DOC. NO. 289
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`appointmentofan administrator underthe circumstances ofthis case runs afoul ofthe definition
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`of “estate”,
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`Thoughtheplaintiff is correct that an “estate” refers to the property a decedent had
`interest in or owned, (EPTL 1-2.6; SCPA 103), and that Surrogate’s Court has jurisdiction over
`the property ofthe decedent, that does not define the entire Jurisdiction of the Surrogate Court.
`The Surrogate Court has “full and complete generaljurisdiction in law and in equity to
`administerjustice in a// matters relating to estates and the affairs ofdecedents, (SCPA §201 (3),
`emphasis added). Hence, plaintiff could have petitioned Surrogate’s Court seeking an
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`administrator be appointed to accept service and represent decedentin the action pending before
`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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`Housemanonthe verdict sheet is granted in so far as evidence is presentedat trial to substantiate
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`such a determination.
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`Counsel for defendantis to prepare an Order and submitit 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
`Buffalo, New York
`>
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`}Alaa MPeT
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`Hon. Deborah A. Chimes, J.S.C.
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