Supreme Court, Monroe County, February 5, 2020

Stuart L. Levison, Rochester, for plaintiff.

Joan de R. O'Byrne, Rochester, for defendant.

This is a tale of two claims.

{**67 Misc 3d at 326}The first—a divorce claim by a deceased wife—is among the worst of claims and like Jacob Marley is as dead as a doornail. The second, the better, if not the best, of the claims, has greater expectations. In an unusual twist, it is a claim for financial support during the decedent's lifetime—portable property in some eyes—which, artfully drafted by the decedent's attorney with Bob Cratchit-like skills, artfully dodges a motion to dismiss at this stage.

The facts in this proceeding have been previously set forth in prior decisions of this court (51 Misc 3d 1207[A], 2016 NY Slip Op 50449[U] [2016]; 51 Misc 3d 1229[A], 2016 NY Slip Op 50881[U] [2016]). In response to earlier motion practice, this court converted the pending divorce action to a proceeding for spousal support under article 4 of the Family Court Act (51 Misc 3d 1229[A], 2016 NY Slip Op 50881[U] [2016]). Thereafter, the parties explored settlement, until, last spring, plaintiff, long confined to a nursing home after a debilitating health crisis, died. The wife's counsel moved to substitute the wife's executor, appointed under Texas law in a Texas probate proceeding, as the plaintiff to continue the support proceeding and seek attorney's fees. Defendant now opposes the substitution of the Texas executor and further moves to dismiss the spousal support proceeding claiming it abated as a matter of law when the [*2]divorce action terminated as a result of the wife's death.^[FN*] The former husband also seeks sanctions against the wife's estate and its counsel for a frivolous action under 22 NYCRR 130-1.1.

Initially, this court notes that the wife's counsel's application to this court contains a lengthy recitation of the twisted and bleak history of this action and complications in a coordinate Texas probate proceeding. These allegations are irrelevant to the narrow legal issue presented here and the court declines to consider them in any respect in resolving this motion. The wife's counsel also makes repeated references to the husband's failure to settle the pending action when the wife was alive. This court rejects those suggestions and strikes any references{**67 Misc 3d at 327} to settlement discussions—or any reference to the husband declining to settle—for violation of CPLR 4547.

In addition, this court notes that the husband's counsel, while not specifically moving to dismiss the pending maintenance and attorney's fees claims, argues in an accompanying memorandum of law that this court, as part of its "such other and further" requested relief, should dismiss these claims as well. For the sake of judicial economy, this court will consider the challenges to the maintenance and attorney's fees claims, now that the original plaintiff is deceased. This step is necessary to move this matter along, as the divorce action was filed six years ago and the court has previously pushed both sides to accelerate their pace in this litigation.

At the outset, "upon the death of a party, an action is stayed until such time as a personal representative of the decedent is duly qualified" (Haynes v Haynes, 2003 NY Slip Op 50867[U],*4 [Sup Ct, Westchester County, Mar. 20, 2003], citing CPLR 1015, and Matter of Einstoss, 26 NY2d 181 [1970]). Where, as here, a representative has been appointed—albeit by a Texas court—the court may, and should, order substitution sua sponte pursuant to CPLR 1015 (see Paul v Ascher, 106 AD2d 619, 621 [2d Dept 1984]; Cohen v Romanoff, 28 Misc 3d 1220[A], 2010 NY Slip Op 51411[U] [Sup Ct, Kings County 2010]). Accordingly, the court sua sponte substitutes the executor as plaintiff on behalf of the deceased, and the caption is hereby amended accordingly.

Turning to the merits of the abatement question, "[a]t common law the general rule was that an action abated upon the death of one of the parties" (Matter of Joseph A. v Gina L., 126 Misc 2d 63, 65 [Fam Ct, Westchester County 1984]). For most actions, this rule was changed by statute (see e.g. EPTL 11-3.2). However, "[a]batement, notwithstanding remedial legislation, still occurs on the death of a party in a number of clearly identified instances," the quintessential example being divorce (Matter of S.B., 165 Misc 2d 632, 634 [Fam Ct, NY County 1995]). "The determinative factor is whether what is involved is personal in nature, or involves the personal status of a party" (id.). There is perhaps no more personal a matter than marriage, and, since that relationship ipso facto terminates upon the death of either party, there is nothing left to dissolve, and the matter therefore abates. Because matters of support and equitable distribution are "ancillary" to the divorce action, they necessarily abate upon the abatement of the{**67 Misc 3d at 328} divorce action itself (Matter of Pavese, 195 Misc 2d 1, 9-10 [Sur Ct, Nassau County 2002]).

The court can find no authority discussing whether a claim for spousal support under article 4 of the Family Court Act abates upon the death of a party. However, the court believes there is good reason to hold that it does not. Unlike a claim for maintenance, spousal support proceedings are not ancillary to divorce—they may be brought even where the parties remain married (Joseph M. v Lauren J., 45 Misc 3d 1211[A], 2014 NY Slip Op 51536[U] [Sup Ct, NY County 2014]). Moreover, they are not personal to the spouse in the same way a divorce is, inasmuch as they may be originated and enforced by a county department of social services when the spouse is a public charge (see Family Ct Act § 422; see e.g. Matter of Ladd v Suffolk County Dept. of Social Servs., 199 AD2d 393, 394 [2d Dept 1993]; Matter of Monroe County Support Collection Unit v Wills, 19 AD3d 1019 [4th Dept 2005]; cf. Matter of Suffolk County Dept. of Social Servs. v Myrick, 85 AD3d 1041 [2d Dept 2011]). The same statute permits a child or relative to "originate a proceeding" to "compel a person chargeable with the support to support the petitioner as required by law" (Family Ct Act § 422 [a]). Finally, in other contexts, the New York courts have held that a trial court can retain jurisdiction over support issues even if the court lacks jurisdiction to adjudicate the divorce action (see Valji v Valji, 130 AD3d 404 [1st Dept 2015]). In Venizelos v Venizelos (216 AD2d 206 [1st Dept 1995]), the trial court dismissed a divorce action for failure to meet the residency requirements of the Domestic Relations Law but retained jurisdiction and properly converted the action into a support proceeding under article 4 of the Family Court Act (see also Bellizzi v Bellizzi, 82 AD3d 1541 [3d Dept 2011] [when wife sought and obtained an award of temporary spousal maintenance during the pendency of the divorce action, the court had authority to consider and award permanent spousal maintenance, even though husband's complaint for divorce was ultimately dismissed]).

Accordingly, while the death of a spouse necessarily negates any future support obligation, this court holds that it does not abate the claim for support that was necessary prior to the spouse's death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor. The motion to{**67 Misc 3d at 329} dismiss the application to substitute the executor as the plaintiff in this action is denied.

This court also considers whether the former wife's claim for attorney's fees, [*3]accrued while bringing a claim for support, survives her death. In that regard, section 438 of the Family Court Act permits this court to award fees for a proceeding under article 4 of the Family Court Act (Matter of Klein v Klein-Annis, 49 AD3d 648 [2d Dept 2008]; Matter of Giliya v Warren, 30 AD3d 420 [2d Dept 2006]). Because the statute grants this court broad discretion in considering a fee award, the motion to dismiss, to the extent it seeks to extinguish any claim for attorney's fees, is denied.