Schnabel v. Huggins

Mar 15, 2004
Versions:5 A.D.3d 583
772 N.Y.S.2d 861

In an action, inter alia, to recover damages for trespass, the defendant appeals from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 15, 2003, as denied her motion to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

With respect to that branch of her motion which was to dismiss the complaint insofar as asserted against the estate of Carl Schultz, the defendant asserted that the action was untimely pursuant to SCPA 1810 because it was not commenced within 60 days of the denial by the fiduciary of the estate of the *584plaintiffs’ claim, for the same damages (see Lazan v City of New York, 213 AD2d 381 [1995]). However, in support of that branch of her motion, the defendant failed to proffer competent evidence in admissible form that such a claim was made and denied within the meaning of SCPA article 18 (see SCPA 1803, 1806; Lazan v City of New York, supra).

In support of that branch of her motion which was to dismiss the complaint insofar as asserted against the estate of Margaret Schultz, the defendant failed to proffer competent evidence in admissible form that she was not a personal representative of that estate (see EPTL 11-3.1, 11-3.2; Matter of Outing v Mathis, 304 AD2d 670 [2003]; Waldman v Mechanical Sys., 294 AD2d 354 [2002]). Ritter, J.P., Goldstein, Crane and Rivera, JJ., concur.