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 

NEW YORK COUNTY 

PRESENT: HON. JUDY H. KIM 

Justice 

---------------------------------------------------------------------------------X 

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 brought under the Federal Employers' Liability Act, 45 USC §51 

et seq., alleging, in sum and substance, that defendants were negligent in exposing employees, 

including plaintiff James V. Jones, to cancer-causing chemicals and materials, plaintiff Geraldine 

Herlihy, as representative of the estate of James V. Jones, now moves, pursuant to CPLR § § 1015 

and 1021, to vacate the automatic stay of proceedings imposed by operation oflaw upon Mr. Jones' 

death and be substituted as plaintiff in his place. Herlihy also moves, pursuant to CPLR §305( c) 

and CPLR §203(e), for an order granting plaintiff leave 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 of a decedent who was the party to a pending action, substitution and amendment of the 

caption, upon motion, is proper (See~' Tag 380, LLC v Estate of Howard 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 

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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 sufficient proof that 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 of the motion to vacate the stay of this action, substitute 

movant for plaintiff James V. Jones, and amend the caption to reflect this substitution is granted 

without opposition. 

However, that branch of the motion to amend the complaint to add a wrongful death claim 

is denied without prejudice. Generally,"[ o ]n a motion for leave to amend a pleading, movant need 

not establish the merit of the proposed new allegations, but must simply show that the proffered 

amendment is not palpably insufficient or clearly devoid of merit" (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 proof of the causal connection between the alleged [negligence] 

and the death of the original plaintiff' (Cruz v Brown, 129 AD3d 455,456 [1st Dept 2015] [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 proof has 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. of City of Albany, 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 of 4 

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NYSCEF DOC. NO. 25 

Accordingly, it is 

INDEX NO. 154342/2023 

RECEIVED NYSCEF: 02/01/2024 

ORDERED that the motion of Geraldine Herlihy, as executor of the estate of James V. 

Jones, deceased, to be substituted as plaintiff in this action and amend the caption accordingly is 

granted, without opposition; and it is further, 

ORDERED that the automatic stay of proceedings imposed by operation of law 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 of JAMES V. JONES, 

Plaintiff, 

-againstTHE PENN 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 of plaintiff's motion for leave to amend the complaint to add 

a cause of action for wrongful death is denied without prejudice; and it is further 

ORDERED that movant shall, within twenty days of the date of this decision and order, 

serve a copy of this decision and order, with notice of entry, upon the County Clerk and the Clerk 

of the General Clerk's Office, who are directed to mark the court's records to reflect the change in 

the caption herein; and it is further 

ORDERED that such service upon the County Clerk and the Clerk of the 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 of 4 

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NYSCEF DOC. NO. 25 

INDEX NO. 154342/2023 

RECEIVED NYSCEF: 02/01/2024 

and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on 

the court's website). 

This constitutes the decision and order of the 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/KIA AMERICAN 

PREMIER UNDERWRITERS, INC. ET AL 

Motion No. 001 

4 of 4 

□ OTHER 

□ REFERENCE 

Page4 of 4 

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