NOT THE SHARPEST KNIFE IN THE DRAWER: Dead Men Can’t Be Sued
A NY state appeals panel has thrown out a breach of contract claim against late lawyer Herman Graber "citing the well-established principle that the dead cannot be sued," reports New York Law Journal.
The suit had been brought by former client, Amin Marte, who was convicted of assault and criminal use of a firearm. Marte claimed that after he paid Graber $8,500 to handle his appeal, the attorney wouldn’t communicate with him and kept adjourning the case so he was forced to hire a Legal Aid lawyer. Three months after his conviction and sentence were upheld, Marte filed a malpractice action pro se against Graber, only to find out that three days before he lost his appeal Graber had died. So Marte switched gears and refilled the suit substituting Graber's wife, Sandra, as the defendant.
The state Appellate Division, 1st Department ruled unanimously that allowing the case against a dead person to proceed was the first in “a volume of errors rarely seen in this Department" made by Supreme Court Justice Barbara R. Kapnick of Manhattan, that the motion to substitute defendants should not have been granted because Graber was already dead when the motion was filed and that Mrs. Graber’s motion to dismiss should have been granted on those grounds.
For his part, Marte intends to file a breach of contract complaint in Queens Civil Court.
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