Thinking You Can Sue a Dead Lawyer
Was One on NY Judge's Many Mistakes, Panel Says

By Mark Fass
New York Law Journal
New York Lawyer
November 17, 2008

A state appeals panel has thrown out a breach of contract claim against a deceased Manhattan defense attorney, citing the well-established principle that the dead cannot be sued.

Initially allowing the case against the late lawyer, Herman Graber, to proceed was the first of many mistakes by Supreme Court Justice Barbara R. Kapnick of Manhattan, according to the unanimous Appellate Division, First Department, reversal.

"This matter arrives before this Court as a result of a volume of errors rarely seen in this Department," Justice James M. Catterson wrote for the panel in Marte v. Graber, 402200/05.

The present suit centers on Mr. Graber's representation - or the purported lack thereof - of Amin Marte, a Bronx man convicted of assault and criminal use of a firearm in May 2001. He was sentenced to concurrent terms of 15 and 20 years.

Represented by appointed counsel at trial, Mr. Marte hired Mr. Graber to handle his appeal. Mr. Marte alleges that Mr. Graber accepted $8,500 in payments, then refused to take Mr. Marte's calls or open his letters, consistently adjourning the case while awaiting additional payments.

Ultimately, a Legal Aid attorney argued Mr. Marte's appeal, and on April 5, 2005, a unanimous First Department panel upheld the conviction and sentence.

Three months later, Mr. Marte filed a malpractice action pro se against Mr. Graber from the Eastern New York Correctional Facility in Napanoch. Soon thereafter, Mr. Marte hired David M.Goldberg, a former Manhattan attorney now in Dutchess County, to pursue the claim.

When Mr. Goldberg noticed that Mr. Graber worked in Mr. Goldberg's old office building - 401 Broadway - he called a "source" to get the scoop on Mr. Graber, Mr. Goldberg said in a recent interview.

"Who is this guy and is he any good?" Mr. Goldberg asked his 401 Broadway contact.

"Any good?" the source replied. "He's dead."

As Mr. Goldberg soon discovered, Mr. Graber had died on April 2 - three days before the First Department issued its affirmance of Mr. Marte's conviction and more than three months before Mr. Marte filed suit.
Mr. Graber had been an assistant district attorney under Frank Hogan and an assistant commissioner of the parole board before starting his solo defense practice. He was 69.

After realizing that the defendant was dead, Mr. Marte twice applied for and received 120-day extensions of the statutory service period, before moving to substitute Mr. Graber's wife, Sandra, as defendant.

Mr. Marte also moved to amend the complaint, replacing the original legal malpractice allegation with a breach of contract claim - apparently to avoid a statute of limitations defense.

In April 2007, Justice Kapnick granted the motion to substitute defendants and denied a motion to dismiss by Ms. Graber. She reaffirmed her decision four months later.

Ms. Graber appealed, and in February the First Department heard oral arguments. On Thursday, nethe unanimous panel dismissed the case in an often-excoriating decision.

Justice Kapnick's first mistake, Justice Catterson wrote, was failing to rule from the case's inception that the action was a nullity. The judge cited Jordan v. City of New York, 23 AD3d 436, for the proposition that a "party may not commence a legal action or proceeding against a dead person."

The trial court "compound[ed] its errors" by granting Mr. Marte's motion to substitute Ms. Graber for her late husband. The panel noted that CPLR 1015(a) only allows substitution of a party who dies - not of a person who is dead at the time of filing.

Justice Catterson then called Justice Kapnick's rejection of Ms. Graber's argument that the proceeding was a legal nullity "incomprehensibl[e]," noting that the caption of the judge's August 2007 decision "clearly reflected the fact" that Mr. Graber died more than two years before the case's sole summons and complaint was filed.

In conclusion, Justice Catterson noted one "final disregard of the CPLR": the amended summons and complaint had never been served, but instead "merely annexed to plaintiff's motion and not filed with the County Clerk."

"Perhaps," Justice Catterson wrote, "had Marte abandoned his initial action, and properly filed a summons and complaint by purchasing a new index number and naming Sandra Graber, the personal representative of Herman Graber, as defendant, the matter before us would not be the nullity it is."

Justices Eugene Nardelli, Milton L. Williams and John W. Sweeny Jr. also sat on the panel.

Ms. Graber's attorney, Ronald Cohen, who recently relocated to Wilmington, N.C., said he "couldn't be happier" with the decision.

"This case has been sticking like a bone in my throat," he said. "I think it's a basic vindication of the position I took originally - you can't sue dead people."
Mr. Cohen added that he was surprised Mr. Marte kept pursuing the matter, considering Mr. Graber's meager estate, which totalled about $17,000.

"You don't get rich practicing solo criminal law," Mr. Cohen said.

Mr. Goldberg said his client, Mr. Marte, intends to file a new summons and complaint in Queens Civil Court alleging breach of contract.

"I'm starting all over again," Mr. Goldberg said.

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