CPLR § 1021

CPLR 1021

Laroche v Laroche, 2018 NY Slip Op 04708 [2d Dept 2018]

"If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (CPLR 1015[a]). "A motion for substitution may be made by the successors or representatives of a party or by any party" (CPLR 1021). Further, "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made" (CPLR 1021). "The Supreme Court is a court of general jurisdiction with the power to appoint a temporary administrator, and may do so to avoid delay and prejudice in a pending action" (Dieye v Royal Blue Servs., Inc., 104 AD3d 724, 726). The determination whether to exercise its authority to appoint a temporary administrator is addressed to the broad discretion of the Supreme Court (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25, 28; Lambert v Estren, 126 AD3d 942, 943; see e.g. Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803). "In most instances the personal representative of the decedent's estate should be substituted in the action" (Weinstein-Korn-Miller, NY Civ Prac, ¶ 1015.06; see Grillo v Tese, 113 AD2d 871, 873).

Here, contrary to Allstate's contention, CPLR 1021 did not give Allstate authority to move to dismiss the complaint, but rather only gave permission to "any party" to move for substitution. Further, Allstate did not submit any proof that it gave notice to the persons interested in the defendant's estate of its motion as required by statute (see CPLR 1021). Moreover, CPLR 1021 provides that an action may be dismissed as to the party for whom substitution should have been made if substitution is not made within a reasonable time. "The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit" (Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d 618, 619; see Alejandro v North Tarrytown Realty Assoc., 129 AD3d 749, 749; Riedel v Kapoor, 123 AD3d 996; Largo-Chicaiza v Westchester Scaffold Equip. Corp., 90 AD3d 716, 717). Absent from the record are any details regarding the diligence employed in seeking substitution, any demonstration that the defense would be prejudiced by the substitution, or a showing of the merits of either the complaint or the defense (cf. Borruso v New York Methodist Hosp., 84 AD3d 1293, 1295). Accordingly, the Supreme Court should have denied Allstate's motion pursuant to CPLR 1021 to dismiss the complaint.

However, with respect to the cross motion, the plaintiff failed to demonstrate any reasonable excuse for the delay in moving for the appointment and substitution of a representative for the defendant's estate. The plaintiff only cross-moved for the appointment and substitution in response to Allstate's motion to dismiss the complaint, and did not submit an affidavit of merit (see Alejandro v North Tarrytown Realty Assoc., 129 AD3d at 750; Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d at 619). Moreover, the plaintiff did not demonstrate the steps taken to secure the appointment of a personal representative or show that it was necessary for the Supreme Court to appoint a temporary administrator to avoid delay and prejudice in the pending action where issue had yet to be joined and Karen L. Lawrence had not appeared on behalf of the defendant (see CPLR 1015[a]; Kastrataj v Blades, 136 AD3d 756, 758; Lambert v Estren, 126 AD3d at 944). Accordingly, we agree with the Supreme Court's denial of the plaintiff's cross motion under the circumstances presented.

3216, very forgiving, etc etc

CPLR R. 3216 Want of prosecution

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

Atterberry v Serlin & Serlin, 2011 NY Slip Op 05439 (App. Div., 2nd 2011)

CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), which "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382, 383; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633; Gibson v Fakheri, 77 AD3d 619; Ferrera v Esposit, 66 AD3d 637, 638). Although the statute prohibits the Supreme Court from dismissing an action based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, "such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" (Davis v Goodsell, 6 AD3d at 384; see Baczkowski v Collins Constr. Co., 89 NY2d at 503-504; Gibson v Fakheri, 77 AD3d 619; Ferrera v Esposit, 66 AD3d at 638).

Here, the plaintiff attempted to file her note of issue 10 days beyond the deadline set by the Supreme Court's certification order, and the defendants did not claim that they have been prejudiced by the minimal delay (see Kadyimov v MacKinnon, 82 AD3d 938). In addition, the delay in filing a note of issue was attributable to law office failure, and the plaintiff proffered both a reasonable excuse for her further two-month delay in making this motion and a potentially meritorious cause of action (see CPLR 2005; Lauri v Freeport Union Free School Dist., 78 AD3d 1130; Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 AD3d 509, 510; Diaz v Yuan, 28 AD3d 603). Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of any intent to abandon the action. Under these circumstances, the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3216 and to extend her time to file a note of issue should have been granted (see Kadyimov v MacKinnon, 82 AD3d 938; Ferrera v Esposit, 66 AD3d at 638; Anonymous v Duane Reade, Inc., 49 AD3d 479; Diaz v Yuan, 28 AD3d 603).

Sanders v New York City Hous. Auth., 2011 NY Slip Op 05479 (App. Div., 2nd 2011)

In light of the approximate three-year delay between the death of the plaintiff and the appointment of the appellant as the administratrix of the plaintiff's estate, the further three-year delay between the appointment of the appellant as administratrix and the underlying motion, inter alia, seeking her substitution in this action, the failure to proffer any excuse for the delays, and the failure to show that the action was potentially meritorious, that branch of the appellant's motion which was for substitution was properly denied (see CPLR 1021; Reed v Grossi, 59 AD3d 509, 511; McDonnell v Draizin, 24 AD3d 628; Washington v Min Chung Hwan, 20 AD3d 303, 305).

Furthermore, that branch of the appellant's motion which was to vacate the dismissal of the action pursuant to CPLR 3216 also was properly denied, as she failed to demonstrate a justifiable excuse for the plaintiff's delay in properly responding to the 90-day notice and a potentially meritorious cause of action (see CPLR 3216[e]; Fenner v County of Nassau, 80 AD3d 555, 556; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784; Matter of Bloom v Lubow, 45 AD3d 680; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Sortino v Fisher, 20 AD2d 25, 31-32).

CPLR § 1021: Substitution

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

Borruso v New York Methodist Hosp., 2011 NY Slip Op 04616 (App. Div., 2nd 2011)

The plaintiffs commenced this action in 1998, based on medical services rendered in 1997. The plaintiff Gregory Borruso (hereinafter the decedent) died in 2001. In March and April 2009, the defendants separately moved pursuant to CPLR 1021 to dismiss the complaint for the plaintiffs' failure to timely substitute a representative from the decedent's estate for him as party plaintiff. At the time the defendants made their separate motions, it had been approximately 12 years since the medical services complained of were rendered, 11 years since the plaintiffs commenced this action, 8 years since the decedent's death, 6 years since letters of administration were issued to the plaintiff Barbara Borruso (hereinafter the surviving plaintiff) as administrator of the estate, and 4 years since the plaintiffs' attorney, by his own admission, learned that a bankruptcy stay resulting from a bankruptcy filing of the insurer of the defendant Gerard K. Hanley, had been lifted. In an order dated September 29, 2009, the Supreme Court granted the defendants' separate motions. The judgment appealed from, entered upon the order, is in favor of the defendants and against the plaintiffs, dismissing the complaint. We affirm.

CPLR 1021 provides, in pertinent part, "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate." " CPLR 1021 requires a motion for substitution to be made within a reasonable time'" (Reed v Grossi, 59 AD3d 509, 511, quoting McDonnell v Draizin, 24 AD3d 628, 628). " The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has merit'" (Reed v Grossi, 59 AD3d at 511, quoting McDonnell v Draizin, 24 AD3d at 628-629; see Rubino v Krasinski, 54 AD3d 1016, 1017; Johnson v Trivedi, 41 AD3d 1259, 1260; Bauer v Mars Assoc., 35 AD3d 333, 334).

Here, the surviving plaintiff failed to move within a reasonable time to substitute a representative of the decedent's estate for the decedent as party plaintiff in this action. Her proffered explanation of law office failure—that the case "fell through the cracks"—is vague and unsubstantiated and insufficient to constitute a reasonable excuse (see Knowles v Schaeffer, 70 AD3d 897, 898). Also without merit is the surviving plaintiff's explanations related to the bankruptcy stay and attempts to schedule an additional deposition. As her attorney acknowledges, he knew the bankruptcy stay was no longer in effect as of March 2005, but the surviving plaintiff had not moved for substitution by the time the defendants filed their motions four years later. As for the surviving plaintiff's efforts to schedule an additional deposition, such matters would in no way serve as an impediment to moving for substitution. In light of the lack of diligence on the part of the surviving plaintiff and the prejudice to the defendants under the circumstances of this case, the Supreme Court properly determined that the surviving plaintiff failed to move within a reasonable time to substitute a representative of the estate for the decedent, and, accordingly, granted the defendants' separate motions pursuant to CPLR 1021 to dismiss the complaint (see McDonnell v Draizin, 24 AD3d at 628-629; Washington v Min Chung Hwan, 20 AD3d 303, 305; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069; Palmer v Selpan Elec. Co., 5 AD3d 248, 248; Suciu v City of New York, 239 AD2d 338, 338; compare Reed v Grossi, 59 AD3d at 511; Rubino v Krasinski, 54 AD3d at 1017).

Death of a Party: CPLR § 1015

CPLR
§ 1015 Substitution upon death

CPLR §
1021 Substitution procedure; dismissal for failure to substitute;
presentation of appeal

Stancu v Cheon Hyang Oh, 2010 NY Slip Op 05754 (App. Div. 2^nd,
2010)

The death of a party divests the
court of jurisdiction to conduct proceedings in an action, the action is stayed
as to him or her pending substitution of a legal representative, and any
determination rendered without such a substitution is generally deemed a
nullity (see CPLR 1015, 1021; Reed v Grossi, 59 AD3d 509, 511; Rumola v Maimonides
Med. Ctr., 37 AD3d 696, 696-697; Lugo v GE Capital Auto Lease, 36 AD3d 409,
410; Singer v Riskin, 32 AD3d 839, 839-840; Giroux v Dunlop Tire Corp., 16 AD3d
1068, 1069; Hicks v Jeffrey, 304 AD2d 618, 618; Faraone v National Academy of
Tel. Arts & Sciences, 296 AD2d 349, 350; Gonzalez v Ford Motor Co., 295
AD2d 474, 475).

Here, the plaintiffs provided no
reason why discovery was required. Accordingly, under the circumstances of this
case, the Supreme Court properly denied the plaintiffs' motion, inter alia, to
vacate the stay of the action imposed pursuant to CPLR 1015 as a consequence of
the decedent's death to the extent of allowing them to conduct discovery to
obtain information necessary to appoint an administrator of the decedent's
estate in the State of New Jersey.

The bold is mine.

CPLR § 1015; CPLR § 1021; CPLR § 603; CPLR R. 1010

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 603 Severance and separate trials

CPLR R. 1010 Dismissal or separate trial of third-party complaint

Meczkowski v E.W. Howell Co., Inc., 2009 NY Slip Op 04874 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court providently
exercised its discretion in granting that branch of the plaintiff's
motion which was for leave to substitute Marek Meczkowski, as
administrator of the estate of Bogumil Meczkowski, in place of Bogumil
Meczkowski pursuant to CPLR 1015 and CPLR 1021 (see Roesenfeld v Hotel Corp. of Am., 20 NY2d 25; Encalada v City of New York, 280 AD2d 578; Egrini v Brookhaven Mem. Hosp., 133
AD2d 610). In addition, the Supreme Court providently exercised its
discretion in granting that branch of the plaintiff's motion which was
to sever the third-party action to avoid further delay of this action,
which was commenced more than nine years ago (see CPLR 603, 1010; see also Singh v City of New York, 294 AD2d 422; Garcia v Gesher Realty Corp., 280 AD2d 440; Ambriano v Bowman, 245 AD2d 404; [*2]Klein v City of Long Beach, 154 AD2d 346).

The bold is mine.