You are here: / / THE ADMINISTRATOR’S MOTION TO BE SUBSTITUED AS PLAINTIFF IN THIS...
, , ,

THE ADMINISTRATOR’S MOTION TO BE SUBSTITUED AS PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION, INITIALLY DENIED, SHOULD NOT HAVE BEEN GRANTED UPON THE MOTION TO RENEW; THE CRITERIA FOR A MOTION TO RENEW, AND A MOTION TO BE SUBSTITUTED FOR A DECEASED PARTY ARE EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s (Walter’s) motion to renew in this medical malpractice action should not have been granted. Walter moved to be substituted as plaintiff. Initially the motion was denied but upon Walter’s motion to renew, the motion was granted:

“A motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” … . However, “[w]hile it may be within the court’s discretion to grant leave to renew upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”… . “Thus, the court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion”… . “While law office failure can be accepted as a reasonable excuse in the exercise of the court’s sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse” … .

“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties” (CPLR 1015[a]). “A motion for substitution may be made by the successors or representatives of a party or by any party” … . “If 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” … . “In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit” … . “Even if the plaintiff’s explanation for the delay is not satisfactory, the court may still grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action, in light of the strong public policy in favor of disposing of matters on the merits” … . Tollinchi v Jamaica Hosp. Med. Ctr., 2023 NY Slip Op 02554, Second Dept 5-10-23

Practice Point: The criteria for a motion to renes, and for a motion to be substituted as a party after the death of a party explained in some depth. Here the motion to renew and the motion to be substituted as a party should have been denied.

 

You might also like
THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
ABSENT A REQUEST FROM A PARTY, SUPREME COURT SHOULD NOT HAVE SUMMARILY DISMISSED THE DECLARATORY JUDGMENT ASPECT OF THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER THE PLAINTIFF’S FAILURE TO INCLUDE DEFENDANT IN THE ORIGINAL FORECLOSURE PROCEEDING WAS THE RESULT OF “WILFUL NEGLECT;” THEREFORE, PURSUANT TO RPAPL 1523, DEFENDANT’S “WILFUL-NEGLECT” AFFIRMATIVE DEFENSE IN THIS REFORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT SUBMITTED TO SHOW THE BANK’S COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).
Conveyance Was For Convenience (Getting a Loan) and Was Not a Gift—Property Therefore Remained in Decedent’s Estate
IN THIS STREET-STOP-FRISK CASE, THE POLICE OFFICER TESTIFIED HE SAW DEFENDANT PUT A BLACK OBJECT IN HIS JACKET POCKET, BUT HE DID NOT TESTIFY HE HAD A REASONABLE SUSPICION THE OBJECT WAS A FIREARM; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP AND FRISK; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECON DEPT).
THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT WHO MADE THE DRUG PURCHASES, WAS NOT ENOUGH TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH WARRANT; MATTER REMITTED FOR A DARDEN HEARING (SECOND DEPT).
SEVEN-YEAR DELAY BETWEEN ARREST AND INDICTMENT DID NOT VIOLATE RIGHT TO SPEEDY TRIAL.

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

THE RELEASE SIGNED BY PLAINTIFF BEFORE TAKING A MANDATORY COLLEGE FITNESS-EDUCATION... UNDER THE 2022 AMENDMENT TO CPLR 213, A BANK WHICH HAS STARTED A FORECLOSURE...