Plaintiff sued his former criminal defense attorney because the attorney did not perfect an appeal.  So far, so good.  What followed shows how difficult litigation can be, and in how many ways a good case can go awry.  Consider, for example, whether there could be a legal malpractice case against the attorney. The answer is probably no, because plaintiff cannot demonstrate "innocence" or "exoneration" and this is an action against a criminal defense attorney.

But this was an action in contract for not filing the appeal.  The attorney died some months prior to the summons and complaint being "served."  What follows is a several year long exercise in wasted time and money for everyone.

The case is Marte v Graber , 2008 NY Slip Op 08552 , Decided on November 13, 2008 , Appellate Division, First Department.  "Because there simply is no precedent nor any support in New York’s Civil Practice Law and Rules for a court obtaining jurisdiction over an action "commenced" three months after the death of the individual named as the sole defendant, we find that the order appealed from is a [*2]nullity. The complaint should have been dismissed by the motion court as a nullity when the putative plaintiff, having filed a summons and complaint, discovered that the named defendant had died before the filing. As it is, this matter arrives before this Court as a result of a volume of errors rarely seen in this Department, and which are set forth below, seriatim"
 

"In or around July 2005, Amin Marte, incarcerated and acting pro se, filed an unsigned, undated summons and complaint alleging legal malpractice by attorney Herman Graber. Thereafter, Marte discovered that Graber had died on April 2, 2005, approximately three months before the filing of the summons and complaint. Thus the action from its inception was a nullity since it is well established that the dead cannot be sued. See Jordan v. City of New York, 23 AD3d 436, 437, 807 N.Y.S.2d 595, 597 (2d Dept. 2005)("party may not commence a legal action or proceeding against a dead person, but must instead name the personal
representative of the decedent’s estate"); see also Arbelaez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 (2nd Dept. 2005); Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754, 755 (2nd Dept. 1994)[FN1]. "