### Jones v Penn Cent. Corp. 2024 NY Slip Op 30366(U) February 1, 2024 Supreme Court, New York County Docket Number: Index No. 154342/2023 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 25 INDEX NO. 154342/2023 RECEIVED NYSCEF: 02/01/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. JUDY H. KIM Justice

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JAMES V JONES, Plaintiff,

- V - THE PENN CENTRAL CORPORATION NK/AAMERICAN PREMIER UNDERWRITERS, INC., CONSOLIDATED RAIL CORPORATION, METRO-NORTH RAILROAD, Defendants.

---------------------------------------------------------------------------------X PART INDEX NO. 154342/2023 MOTION DATE 06/07/2023 MOTION SEQ. NO. 001 DECISION 

### + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 19 were read on this motion for SUBSTITUTION 04

In this negligence action broughtunderthe Federal Employers' LiabilityAct, 45 USC §51 et seq., alleging, in sum and substance, that defendants were negligent in exposing employees, including plaintiffJames V. Jones, to cancer-causing chemicals and materials, plaintiffGeraldine Herlihy, as representative ofthe estate ofJames V. Jones, now moves, pursuant to CPLR §§1015 and 1021, to vacate the automatic stay ofproceedingsimposedbyoperation oflawuponMr. Jones' death and be substituted as plaintiffin his place. Herlihy also moves, pursuant to CPLR §305(c) and CPLR §203(e), for an ordergranting plaintiffleave to amend the complaint to add a claim for wrongful death and deem this claim timely filed. DISCUSSION It is well settled that, where an administrator or executor is appointed as representative of the estate ofa decedent who was the party to a pending action, substitution and amendment ofthe caption, upon motion, is proper (See~' Tag 380, LLC v Estate ofHoward P. Ronson, 69 AD3d

154342/2023 JONES, JAMES V vs. THE PENN CENTRAL CORPORATION A/KIA AMERICAN PREMIER UNDERWRITERS, INC. ET AL Motion No. 001 1 of 4 Page 1 of4 

### [* 1]NYSCEF DOC. NO. 25 INDEX NO. 154342/2023 RECEIVED NYSCEF: 02/01/2024 

### 471, 473-474 [1st Dept 2010]). In this case, movant has submitted sufficientproofthat she is the duly appointed executor of the decedent's estate (i.e., the Last Will and Testament and Death Certificate of decedent and New Jersey Monmouth County Surrogate's Court Executor Short Certificate). Accordingly, that branch ofthe motion to vacate the stay ofthis action, substitute movant for plaintiffJames V. Jones, and amend the caption to reflect this substitution is granted without opposition. However, that branch ofthe motion to amend the complaint to add a wrongful death claim is deniedwithoutprejudice. Generally,"[o]n amotion for leave to amend apleading, movantneed not establish the merit ofthe proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid ofmerit" (Miller v Cohen, 93 A.D.3d 424,425 [1st Dept 2012] [internal quotation marks omitted]). However, "[a] motion seeking leave to amend a personal injury complaint to assert a cause of action for wrongful death must be supported by competent medical proofofthe causal connection between the alleged [negligence] andthe death ofthe originalplaintiff' (Cruz vBrown, 129 AD3d455,456 [1stDept2015] [internal citations omitted]; see also Griffin v New York City Auth., 1 AD3d 141, 142 [1st Dept 2003]). Here, no expert affidavit or other competent medical proofhas been submitted. While a decedent's death certificate may, under certain circumstances, be sufficient to establish a causal connection (See ~' Gosse v St. Peter's Hosp. ofCity ofAlbany, 23 Misc 3d 892, 900 [Sup Ct, Albany County 2009]) it is insufficient to do so here-the proposed amended complaint alleges that as a proximate result of defendants' negligence, the decedent sustained injuries including bladder cancer and lymphoma, resulting in his eventual death (NYSCEF Doc. No. 24 [Proposed Am. Compl. at ,J86]) 

### while the death certificate lists the cause of death as cardiopulmonary arrest due to (or as a consequence of) congestive heart failure.

154342/2023 JONES, JAMES V vs. THE PENN CENTRAL CORPORATION A/KIA AMERICAN PREMIER UNDERWRITERS, INC. ET AL Motion No. 001 2 of 4 Page 2 of4 

### [* 2]NYSCEF DOC. NO. 25 Accordingly, it is INDEX NO. 154342/2023 RECEIVED NYSCEF: 02/01/2024



### ORDERED that the motion ofGeraldine Herlihy, as executor ofthe estate ofJames V. Jones, deceased, to be substituted as plaintiffin this action and amend the caption accordingly is granted, without opposition; and it is further, 

### ORDERED that the automatic stay ofproceedings imposedby operation oflaw upon the decedent's death is dissolved; and it is further 

### ORDERED that the caption is amended to read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

-----------------------------------------------------------------------------X GERALDINE HERLIHY, Executrix for the Estate ofJAMES V. JONES, Plaintiff,-againstTHEPENN CENTRAL CORPORATION a/k/a AMERICAN PREMIER UNDERWRITERS, INC., CONSOLIDATED RAIL CORPORATION and METRO-NORTH RAILROAD, Defendants.

-----------------------------------------------------------------------------X and it is further Index No. 154342/2023



### ORDERED that the branch ofplaintiff's motion for leave to amend the complaint to add a cause ofaction for wrongful death is denied without prejudice; and it is further 

### ORDERED that movant shall, within twenty days ofthe date ofthis decision and order, serve a copy ofthis decision and order, with notice ofentry, upon the County Clerk and the Clerk ofthe General Clerk's Office, who are directed to markthe court'srecords to reflectthe change in the caption herein; and it is further 

### ORDERED that such serviceupon the County Clerk and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse

154342/2023 JONES, JAMES V vs. THE PENN CENTRAL CORPORATION A/K/A AMERICAN PREMIER UNDERWRITERS, INC. ET AL Motion No. 001 3 of 4 Page 3 of4 

### [* 3]NYSCEF DOC. NO. 25 INDEX NO. 154342/2023 RECEIVED NYSCEF: 02/01/2024
and County ClerkProcedures forElectronicallyFiled Cases 

### (accessible atthe "E-Filing"page on the court's website). This constitutes the decision and order ofthe Court.

2/1/2024

DATE HON. JUDY H. KIM, J.S.C. CHECK ONE: APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

154342/2023 JONES, JAMES V vs. THE PENN CENTRAL CORPORATION A/KIAAMERICAN PREMIER UNDERWRITERS, INC. ET AL Motion No. 001 4 of 4

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