New York State Court of Claims

New York State Court of Claims

SENTER v. THE STATE OF NEW YORK, #2005-028-566, Claim No. 102602, Motion No. M-70238


Synopsis


Claimant's CCA §15(6) motion is granted.

Case Information

UID:
2005-028-566
Claimant(s):
RICHARD SENTER
Claimant short name:
SENTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102602
Motion number(s):
M-70238
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
LEWIS B. OLIVER, JR., ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Cornelia Mogor, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion pursuant to Court of Claims

Act § 15 for substitution of the parties:


1. Notice of Motion and supporting affirmation of Lewis B. Oliver, Jr., Esq.
(Oliver Affirmation) and supporting affidavit of John R. Senter (Senter Affidavit) with annexed Exhibits A-C, filed June 6, 2005.

  1. Letter of no opposition from Assistant Attorney General Cornelia Mogor
(Mogor Letter) received July 26, 2005.

3. Letter of Lewis B. Oliver (Oliver Letter) received August 22, 2005.

The underlying Claim seeking damages for the alleged appropriation of real property was commenced by Richard G. Senter on June 14, 2000. On September 7, 2004, Claimant died (Exhibit A) and by the instant application John R. Senter, as executor of the decedent's estate seeks an Order substituting him in his representative capacity as the Claimant. Rensselaer County Surrogate's Court issued Letters Testamentary to John R. Senter and Edger L. Senter on October 14, 2004 (Exhibit C). Defendant does not oppose the application.
The Court of Claims Act provides in relevant part:In the event of the death of the claimant... it shall be the duty of the personal representative of said claimant... within six months after he becomes invested with the title to said claim... to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim...


(Court of Claims Act § 15).

A review of the papers submitted establishes that John R. Senter qualified as executor on October 14, 2004 (Senter Affidavit, Exhibit C). However, at issue is whether both parties named in the Letters Testamentary must be substituted as co-executors of Claimant's estate. It is well established that co-executors are regarded in law as one person. They have a joint and entire authority over the whole property which is committed to their care. The acts of any one of them in respect to the administration of the estate are deemed to be acts of all. Thus one of two executors may assign a note belonging to the estate of the testator, may sell personal property of the estate, pay a debt, assent to a legacy, or compromise a claim in favor of or against the estate without the concurrence of the other (Matter of Bulova, 60 Misc 2d 151; see also Barry v Lambert, 98 NY 300, 308 ). Moreover, each individually posses the right to institute an action or enforce a claim of the estate (Matter of Heubach, 165 Misc 196; McGregor v McGregor, 35 NY 218). Edger L. Senter's temporary status as co-executor of Claimant's estate will cease after Claimant's will is probated, leaving John R. Senter as the sole executor and trustee (Oliver Letter). As such, the instant motion is granted.

ORDERED that John R. Senter, as executor of the estate of Richard G. Senter, duly adjudged and decreed as such by Order of the Hon. Christian F. Hummel, Rensselaer County Surrogate dated October 14, 2004, be and hereby is substituted as Claimant in the above entitled action.


October 5, 2005
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims