You are here: / / Executor’s Motion to Be Substituted for Decedent in Negligence Action T...
,

Executor’s Motion to Be Substituted for Decedent in Negligence Action Too Late

In affirming the dismissal of an executor’s motion to be substituted as a party in a negligence action (on behalf of the decedent), the Second Department explained:

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 … . 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….

The Supreme Court providently exercised its discretion in denying the appellant’s motion pursuant to CPLR 1015 for leave to substitute himself as a party plaintiff and granting the defendant’s cross motion pursuant to CPLR 1021 to dismiss the complaint, in light of the 21-month delay in obtaining preliminary letters testamentary, the further one-year delay in seeking substitution, the failure to demonstrate a reasonable excuse for the delays, the absence of any affidavit of merit, and the prejudice to the defendant… .  Terpis v Regal Hgts Rehabilitation & Health Care Ctr Inc, 2013 NY Slip Op 05200, 2nd Dept 7-10-13

 

You might also like
RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS MARKED OFF THE CALENDAR BUT WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT).
COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS.
THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
EXPERT AFFIDAVITS, SUBMITTED SOLELY ON THE ISSUE OF PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, SHOULD HAVE BEEN ACCEPTED BY THE COURT, EVEN THOUGH THE EXPERTS WERE NOT QUALIFIED TO ASSESS WHETHER THE DEFENDANT CHIROPRACTOR DEVIATED FROM THE APPROPRIATE STANDARD OF CARE.
THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).
Condition Precedent to Arbitration Re: a Hit-and-Run Accident Involving an Unidentified Vehicle Is Physical Contact with Unidentified Vehicle—Lack of Proof of Physical Contact Justified Permanent Stay of Arbitration
UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Notice to Admit Improperly Sought Admission at Heart of Case Criteria for Constructive Trust Not Met