CPLR 1015(a) and 1021

The First Department denied defendant's motion to dismiss the complaint for failure to timely substitute a representative for deceased plaintiff, in Peters v. City of New York Health & Hosp. Corp., which was decided on February 26, 2008. By submitting its expert's affidavit of merit and a reasonable explanation for the delay in seeking substitution, decedent's estate showed adequate cause why this medical malpractice action should not have been dismissed for failure to timely move for substitution, pursuant to CPLR 1015[a] and 1021.

New York practice point: Even after a lengthy delay, a motion to substitute a party will be granted absent a defendant's showing of prejudice. There is no prejudice when, as here, the action will likely rely on medical records and other documentary evidence and not on the testimony of eyewitnesses.