You are here: / / DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE...
,

DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT).

The Second Department determined the causes of action brought by plaintiff’s decedent were properly dismissed because counsel did not timely substitute a representative for the deceased plaintiff:

​

“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 plaintiff’s counsel failed to demonstrate that he made any diligent efforts to substitute a representative for the deceased plaintiff. Additionally, the plaintiff’s counsel did not demonstrate a reasonable excuse for failing to seek a substitution. Further, the plaintiff’s counsel failed to submit an affidavit of merit, and did not rebut the contention of  [defendants] that they were prejudiced in their ability to defend the case. Howlader v Lucky Star Grocery, Inc., 2017 NY Slip Op 06067, Second Dept 8-9-17

 

CIVIL PROCEDURE (TRUSTS AND ESTATES, SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE,  SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))/ATTORNEYS (TRUSTS AND ESTATES, SUBSTITUTION FOR DECEASED PLAINTIFF, DECEASED PLAINTIFF’S LAWSUIT DISMISSED FOR FAILURE TO TIMELY SUBSTITUTE A REPRESENTATIVE OF PLAINTIFF’S ESTATE (SECOND DEPT))

You might also like
Lawsuit Prohibited by Unambiguous Release
Transactional Res Judicata Analysis Explained
Allegation that Town Planted a Tree Near a Sidewalk and Did Not Maintain the Roots, Thereby Creating a Dangerous Condition, Is an Allegation of “Nonfeasance,” not an “Affirmative Act of Negligence”
SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).
LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT; CRITERIA EXPLAINED.
THE DEFENDANT IN THIS SLIP AND FALL CASE, WHOSE ANSWER HAD BEEN STRUCK, SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ON DAMAGES (FIRST DEPT).
GUARANTOR OF A CRIMINALLY USURIOUS LOAN WAS ENTITLED TO SUMMARY JUDGMENT IN AN ACTION SEEKING PAYMENT, THE DOCTRINE OF ESTOPPEL IN PAIS DID NOT APPLY (SECOND DEPT).
ONCE SUPREME COURT FOUND DEFENDANT’S COUNSEL INEFFECTIVE IT WAS REQUIRED TO VACATE THE CONVICTION; DEFENDANT MOVED TO VACATE HIS CONVICTION BECAUSE HE REJECTED A PLEA OFFER WITHOUT BEING INFORMED HE COULD BE SUBJECT TO LIFE IN PRISON AS A PERSISTENT FELONY OFFENDER AFTER TRIAL; SUPREME COURT SHOULD NOT HAVE REINSTATED THE ORIGINAL SENTENCE AFTER FINDING DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE (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

DECLARATORY JUDGMENT ACTION SEEKING A DETERMINATION OF THE OWNERSHIP OF A STOCK... IN THE FACE OF A COMPLETE WRITTEN AGREEMENT, EVIDENCE OF A RELATED ORAL AGREEMENT...