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MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED.

The First Department, over a dissent, determined the Public Administrator’s late motion (CPLR 1021) for substitution (for the deceased plaintiff) in a medical malpractice action was properly granted. There was a delay of more than one year after letters testamentary were issued before substitution was sought. The delay was essentially caused by law office failure. With respect to a reasonable excuse for the delay, the court wrote:

… [T]he record shows that there was a dispute between two of [the deceased’s] children as to who would administer the estate, and that the Public Administrator’s counsel was on maternity leave for five months. In addition, in this case, inadvertent errors in drafting the agreement to retain counsel accounted for some of the delay. Thus, … there are circumstances present that “adequately explain[] the delay in issue” … . Public Adm’r, as Adm’r of the Estate of Ronald Simpson v Levine, 2016 NY Slip Op 05896, 1st Dept 8-25-16

 

TRUSTS AND ESTATES (MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)/CIVIL PROCEDURE (TRUSTS AND ESTATES, MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)

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Waiver of Appeal Invalid, Sentence Excessive.

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