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Cullum v. 122 Fifth Assoc., LLC
Cullum v 122 Fifth Assoc., LLC 2024 NY Slip Op 34530(U) December 18, 2024 Supreme Court, New York County Docket Number: Index No. 159517/2023 Judge: Denise M. Dominguez 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.
!FILED: NEW YORK COUNTY CLERK 12/30/2024 11:14 AMI INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M Justice ---------------------------------------------------------------------------------X INDEX NO. 159517/2023 JOHN CULLUM, EMILY FRANKEL MOTION SEQ. NO. 001 Plaintiff,
- V - DECISION+ ORDER ON 122 FIFTH ASSOCIATES, LLC,122 FIFTII ASSOCIATES, MOTION
Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32 . were read on this motion to/for AMEND CAPTION/PLEADINGS
Upon reading the above listed documents, the motion by Farber Schneider Ferrari LLP,
counsel for Plaintiff JOHN CULLUM and Plaintiff EMILY FRANKEL, deceased, is granted.
As per the complaint, Plaintiffs seek to recover for damages to their property, located at 13
West 17th Street in Manhattan, allegedly caused by the Defendants' construction/development
project, known as 122 5th Avenue, located adjacent to the Plaintiffs' property.
This action was commenced on September 27, 2023 by the filing of the summons and
complaint. Per correspondence from Farber Schneider Ferrari LLP, dated May 21, 2024, this action
was stayed due to the death of Plaintiff EMILY FRANKEI, (NYSCEF Doc. 16, 28).
Farber Schneider Ferrari LLP now moves for an order to amend the complaint and caption
to substitute the deceased Plaintiff EMILY FRANKEL with JOHN C. CULLUM and ROGERS.
HABER, as Co-Executors of the Estate of Emily Frankel and to lift the stay and restore this matter
to active status. No opposition to the motion has been submitted. Upon review, the motion is
granted. 159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 1 of 4 Motion No. 001
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!FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024
Pursuant to CPLR §1021, a motion for substitution due to the death of a party shall be made
within a reasonable time. (CPLR §1021; Strum v. Bressler, 214 A.D.3d 465 [1st Dept 2023];
Riedel v. Kapoor, 123 A.D.3d 996, [2d Dept 2014]). Farber Schneider Ferrari LLP have shown
that diligent efforts were made to identify an individual(s) to be appointed as the Executors of
Plaintiff EMILY FRANKEL's estate and that the within motion for substitution was pursued
shortly after the appointment of John C. Collum and Roger S. Haber as Executors (NYSCEF Doc.
29). Farber Schneider Ferrari LLP also submitted, at this Court's request, a clearer copy of the
Certificate of Appointment of Executors.
In light of the appointment of John C. Collum and Roger S. Haber as Executors of the
estate of EMILY FRANKEL, pursuant to CPLR § 1021, that portion of the motion which seeks to
substitute John C. Collum and Roger S. Haber as Co-Executors of the Estate of EMILY
FRANKEL, deceased, in place of EMILY FRANKEL, is granted. Additionally, in light of the
substitution, the complaint shall be amended as proposed (NYSCEF Doc. 31) and the stay shall be
lifted. Additionally, the parties are directed to submit a joint proposed Preliminary Conference
Order on consent as per Part 35 rules by January 27, 2025.
Accordingly, it is hereby
ORDERED that the motion to amend the complaint is granted, and it is further
ORDERED that all papers, pleadings, and proceedings in the above-entitled action be
amended by substituting the name of John C. Collum and Roger S. Haber as Co-Executors of the
Estate of EMILY FRANKEL, deceased, in place and stead of said decedent, without prejudice to
the proceedings heretofore had herein; and it is further
159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 2 of 4 Motion No. 001
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!FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024
ORDERED that the caption be amended as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X JOHN C. CULLUM and ROGER S. HABER, as Co- Executors of the Estate of EMILY AMENDED SUMMONS FRANKEL, Deceased, and JOHN CULLUM, individually, Index No. 159517/2023 Plaintiffs,
- against-
122 FIFTH ASSOCIATES, LLC and 122 FIFTH ASSOCIATES Defendants. ------------------------------------------------------------------X
and it is further,
ORDERED that the Plaintiffs motion for leave to amend the complaint pursuant to CPLR
§3025 (b), is granted; and it is further
ORDERED that Plaintiff file the supplemental summons and amended complaint in the
proposed form annexed to the moving papers (NYSCEF Doc. 31) within 30 days of service of a
copy of this order with notice of entry; and it is further
ORDERED that the amended complaint in the proposed form annexed to the moving
papers (NYSCEF Doc. 31) shall be deemed served upon Defendants by service of a copy of this
order with notice of entry thereof; and it is further
ORDERED that Defendants shall serve an answer to the amended complaint or otherwise
respond thereto within 20 days from the date of service of this order with notice of entry; and it is
further
ORDERED that the stay is hereby lifted; and it is further
ORDERED that per Part 35 Rules, the parties are directed to submit a joint proposed
Preliminary Conference Order, setting forth the dates for the completion of any outstanding
159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 3 of 4 Motion No. 001
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!FILED: NEW YORK COUNTY CLERK 12/30/2024 11: 14 AM! INDEX NO. 159517/2023 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/30/2024
discovery to the Part 35 Clerk via email at sfc-part35-c1erk@nycourts.gov on January 27, 2025 by
5 :00 p.m. to be So Ordered; and it is further
ORDERED that Farber Schneider Ferrari LLP, shall serve a copy of this order with notice
of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed
to amend their records to reflect such change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website).
12/18/2024 DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
159517/2023 CULLUM, JOHN ET AL vs. 122 FIFTH ASSOCIATES, LLC ET AL Page 4 of 4 Motion No. 001
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