On July 17, 2000, the following papers were read on the motion of Goldstein,
Goldstein & Rikon, P. C. to permit Mr. Anthony Winters to be substituted as
1. Notice of Motion
2. Affirmation in Support and Annexed Exhibits.
Claimant, Olevia Ousley-Winters, filed this claim in December 1993, seeking to
recover damages for medical malpractice and medical neglect she alleged she
endured while she was in the custody of the Department of Correctional Services.
She died intestate on July 23, 1998. In the present application, her attorneys,
Goldstein, Goldstein & Rikon, P. C., represent that Mrs. Winters' son,
Anthony Curtiss Winters, a minor child, is Mrs. Winters' only heir. They seek
to have Anthony Winters substituted as Claimant. Mr. Winters is alleged to have
been "legally separated"
from Claimant at the
time of Claimant's death, but has since been appointed the guardian of the
property of Anthony Curtiss Winters (see,
SCPA §1701 et
). Defendant has taken no position on this application.
An action for personal injury survives the death of the person in whose favor
the cause of action existed, and may be brought or continued by the "personal
representative" of the decedent (EPTL §11-3.2[b]; Court of Claims Act
§15). A "personal representative" is someone who has received letters to
administer the estate (EPTL §1-2.13). Status as a "committee, conservator,
curator, custodian, [or] guardian..." is not sufficient to make one a personal
representative and does not give one the right to bring or continue an action of
behalf of a decedent (EPTL §§11-3.2[b] and 1-2.13; Court of Claims Act
§15; Lichtenstein v State of New York, 93 NY2d 911, 913; Smith v
State of New York, 41 NY2d 1063, 1065).
Letters of administration are ordinarily granted to the highest ranking
eligible distributee of the intestate's estate (see, SCPA
§1001). A person who has had a "final decree of separation" from the
decedent rendered against him is not considered a distributee under the law of
intestate descent (EPTL §§4-1.1 and 5-1.2[a]). However, he or she
may serve as the administrator of the estate and receive letters of
administration to the extent that he or she is acting as a guardian of the
property of an infant who is the sole distributee (see, SCPA
§1001; Matter of Resnick, 76 Misc 2d 541).
Mr. Winters did not submit proof that he had qualified as administrator and
received letters of administration from the Surrogate's Court in Westchester
County, the county in which Claimant resided at the time of her death. His
separation from Claimant would apparently preclude him from being a distributee
(EPTL §§4-1.1 and 5-1.2[a]). However, his status as the guardian
of the property of Anthony Curtiss Winters, who is alleged to be the sole heir
of Claimant's estate, would give him standing to apply to serve as the
administrator of Claimant's estate (see, SCPA §1001;
Matter of Resnick, 76 Misc 2d 541, supra). This matter is
therefore adjourned until December 20, 2000 to give Mr. Winters time to obtain
and submit proof that he has qualified to serve as the administrator of