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))