Practice point: The Appellate Division determined that the Supreme Court providently exercised its discretion in
granting the defendants' motion pursuant to CPLR 1021 to dismiss the
complaint, and denying that branch of the
administrator's cross motion which was, in effect, a CPLR 1015 motion
for leave to substitute himself as a party plaintiff and to amend the
caption accordingly.
The Appellate Division noted that the administrator's failure to effect the required substitution until more than 6 ½ years after the decedent's death and nearly 5 ½ years after he was appointed administrator evinced a lack of diligence in prosecuting this action, which had been pending for nearly 8 years at the time the administrator sought substitution. The administrator failed to demonstrate a reasonable excuse for the delay in seeking substitution, which he did only after the defendants moved to dismiss the complaint. In addition, the administrator failed to demonstrate a potentially meritorious cause of action through the submission of admissible evidence, and did not rebut the defendants' allegations of prejudice.
Student note: CPLR 1021 provides, in pertinent part, that if the event requiring the
substitution of a party "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."
Determining whether the motion is made within a reasonable time 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.
Case: Alejandro v. North Tarrytown Realty Assoc., NY Slip Op 04792 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Denial of an Article 78 petition.
