NY judge dismisses lawsuit filed without plaintiff’s consent

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A state Supreme Court justice has dismissed a lawsuit filed by an attorney who did not have the authority to represent the plaintiff he named in the complaint.

On May 5, 2023, Rochester attorney John M. Regan Jr. filed a medical malpractice and wrongful death action against Rochester General Hospital and several doctors and other health care workers.

He claimed the complaint was filed on behalf of Susan Farag, executrix of the estate of Patricia O. Smith, Farag’s sister.

In court papers, Regan swore that he represented Farag.

“But Susan Farag has no idea who Mr. Regan is. He is not her attorney and she never authorized him to file this lawsuit,” according to the decision of state Supreme Court Justice Joseph D. Waldorf.

The defendants learned that, on May 3, 2023, two days before filing the lawsuit, Regan unsuccessfully sought, in Surrogate’s Court, to have Smith’s ex-husband granted limited letters of administration to file the lawsuit.

In Regan’s affirmation to Surrogate’s Court, he acknowledged Farag’s “unwillingness to undertake the cause of action on behalf of the estate.”

State Supreme Court Justice Joseph D. Waldorf granted a defense motion to dismiss the lawsuit on the ground that Regan had no authority from Farag to file this complaint.

When the authority of an opposing party’s attorney to represent the party has been called into question, the burden is on the attorney asserting the authority.

“Put differently, an attorney who enters an unauthorized appearance in a case without his purported client’s consent renders proceedings taken therein void … Such is the case here,” Waldorf wrote.

“Defendants have collectively established through Susan Farag’s sworn testimony that Mr. Regan had no express or implied authority to commence this action. Starkly put, Defendants established that Mr. Regan knew he did not represent Susan Farag but he commenced the action in her name anyway,” he wrote.

“The defendants have met their burden that Mr. Regan’s commencement of this action and all conduct thereafter constitutes an unauthorized appearance on behalf of Susan Farag and that the complaint is properly dismissed as void,” he wrote.

“Mr. Reagan’s arguments in opposition fail to compel a different result. Indeed, at oral argument he acknowledged that he does not have a signed retainer from Susan Farag,” he wrote.

“To the extent that Regan claims implied authority to have commenced the action from the estate’s lawyer, such an argument is unavailing even if it were in fact true,” he wrote.

Regan never offered an affirmation from the estate’s lawyer who purportedly provided authority for him to commence the action on behalf of Farag.

“Thus, there is no record support whatsoever to suggest implicit authority was conferred by Susan Farag to Mr. Regan to commence this action,” he wrote.

“And even if Mr. Regan had provided such an affirmation from the estate’s attorney it would not matter because only Susan Farag was authorized to expressly commence an action on behalf of decedent’s distributes,” he wrote.

The defendants have either withdrawn requests for sanctions, or expressly stated they do not intend to seek sanctions.

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