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Administrator’s Delay In Seeking to Be Substituted for the Decedent In a Lawsuit Justified Dismissal of the Complaint with Prejudice

The Second Department determined the estate’s administrator’s more than five-year delay in seeking to be substituted for the decedent as plaintiff in a lawsuit (CPLR 1021), together with the administrator’s failure to provide an excuse for the delay and demonstrate the action had merit, warranted the dismissal of the complaint with prejudice:

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.” 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 … .

Here, 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 of the decedent’s estate evinced a lack of diligence on the part of the administrator 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 … . Furthermore, 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. Accordingly, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 1021 to dismiss the complaint, with prejudice…  Alejandro v North Tarrytown Realty Assoc., 2015 NY Slip Op 04792, 2nd Dept 6-10-15

 

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