You are here: / / THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION...
, ,

THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION TO SUBSTITUTE AN ADMINISTRATOR DID NOT WARRANT DISMISSAL OF THE ACTION; DECEDENT HAD BEEN AWARDED SUMMARY JUDGMENT ON LIABILITY IN THIS TRAFFIC-ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the four year delay in appointment of an administrator and the addition one year in moving for substitution in this traffic accident case did not warrant dismissal of the action:

… [T]he approximately four-year delay in obtaining letters of administration followed by an approximately one-year delay in moving for substitution shows a lack of diligence … . However, even if the “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” … .

Here, where the decedent was awarded summary judgment on the issue of liability against the defendants, the action has potential merit … . Further, the defendants provided mere “conclusory allegations of prejudice based solely on the passage of time” … . This record reflects that the defendants will suffer little or no prejudice as a result of the delay, particularly because this case, which is set for a trial on damages only, is likely to turn on medical records and an extant deposition transcript … . Hemmings v Rolling Frito-Lay Sales, LP, 2023 NY Slip Op 05125, Second Dept 10-11-23

Practice Point: Plaintiff had been awarded summary judgment on liability in this traffic accident case. Plaintiff died and there was a five-year delay before the motion to substitute an administrator. The action should not have been dismissed.

 

You might also like
CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here Defendant’s Brother Brought a CPLR 5239 Proceeding to Vacate an Execution Against the Brother’s Property Which Purported to Relate to a Debt Owed by Defendant—The Execution Was Vacated Based Upon the Brother’s Proof of Ownership
A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY.
WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).
DEFENDANTS MOVED TO DISQUALIFY PLAINTIFF, AN ATTORNEY AND PHYSICIAN REPRESENTING HIMSELF IN THIS FRAUD AND BREACH OF CONTRACT ACTION, ARGUING PLAINTIFF MAY BE CALLED AS A WITNESS; THE DEFENDANTS DID NOT SPECIFY HOW PLAINTIFF’S TESTIMONY WOULD BE NECESSARY TO THE DEFENSE; THE MOTION TO DISQUALIFY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
FAILURE TO FILE PROOF OF SERVICE WITHIN TWENTY DAYS OF DELIVERY OR MAILING OF THE SUMMONS IS NOT A JURISDICTIONAL DEFECT WHICH DEPRIVES THE COURT OF JURISDICTION OVER THE SERVED PARTY (SECOND DEPT). ​
NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT).
THE ANONYMOUS TIP THAT A MAN WITH A GUN WAS LEAVING A CLUB DID NOT PROVIDE THE POLICE WITH SUFFICIENT INFORMATION FOR STOPPING AND DETAINING THE DEFENDANT WHO SUBSEQUENTLY RAN, PULLED OUT A HANDGUN AND WAS SHOT BY THE POLICE; DEFENDANT’S MOTION TO SUPPRESS THE HANDGUN SHOULD HAVE BEEN GRANTED (SECOND DEPT).
NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE PLAINTIFF-STUDENT’S INJURIES, ANOTHER STUDENT, WHO WAS BEING CHASED BY A DOG WHICH HAD BROKEN LOOSE, RAN INTO PLAINTIFF DURING LACROSSE PRACTICE (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

THE “TIME WHEN” THE ALLEGED SEXUAL ABUSE TOOK PLACE IN 1997 WAS... THE DRIVER OF THE FIRE ENGINE RESPONDING TO AN EMERGENCY STRUCK PLAINTIFF’S...