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THE ADMINSTRATOR’S SIX-YEAR DELAYING IN SEEKING SUBSTITUTION FOR THE DECEASED PLAINTFF, COUPLED WITH THE PREJUDICE TO THE DEFENDANT IN THIS PERSONAL INJURY CASE, WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s six-year delay in substituting the estate for the deceased in this personal injury case, warranted dismissal of the complaint:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made” … . CPLR 1021 provides that “[a] motion for substitution may be made by the successors or representatives of a party or by any party” … and requires that such substitution “be made within a reasonable time” …. If substitution is not made within a reasonable time, “the action may be dismissed as to the party for whom substitution should have been made” (CPLR 1021). “[T]he determination of whether the timing is reasonable 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 administrator’s protracted delay of almost six years in obtaining limited letters of administration so as to be substituted in this action, for which he provided no explanation in his initial motion papers and only an unsubstantiated, partial explanation in his reply attorney affirmation, demonstrated a lack of diligence. Furthermore, in this 16-year-old personal injury action, in which the deposition of the bus driver was never obtained, the administrator failed to rebut the defendants’ showing of prejudice arising both from the passage of time and the unavailability of the bus driver. Finally, the administrator did not submit in support of his motion the complaint, a bill of particulars, deposition transcripts, or any proof at all as to the potential merit of the cause of action. Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the administrator’s motion and, in effect, denying the defendants’ application to dismiss the complaint for failure to timely seek substitution ..Watson v New York City Tr. Auth., 2025 NY Slip Op 05718, Second Dept 10-15-25

Practice Point: Here an administrator’s six-year delay in seeking substitution for the deceased plaintiff, coupled with prejudice to the defendant, warranted dismissal of the personal injury complaint.

 

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PETITIONER’S SISTER ACTED AS AGENT FOR THEIR DECEASED MOTHER; PETITIONER’S STANDING TO SEEK AN ACCOUNTING PURSUANT TO THE GENERAL OBLIGATIONS LAW WAS NOT AFFECTED BY THE PRINCIPAL’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that petitioner had standing to seek an order pursuant to General Obligations Law 5-1510 directing the respondent, petitioner’s sister, to provide a copy of all bank statements, receipts, disbursements and transactions entered into by the respondent while acting as agent for the parties’ deceased mother. Contrary to the Surrogate’s ruling, the death of the parties’ mother did not deprive petitioner of standing to seek an accounting:

… [T]he death of decedent did not divest petitioner of standing pursuant to General Obligations Law § 5-1510 (3) to commence this special proceeding. Section 5-1510 (3) identifies, both directly and by reference to section 5-1505 (2) (a) (3), the parties that have standing to seek judicial intervention for the purpose of, among other things, compelling an accounting of all receipts, disbursements and transactions entered into by an agent on behalf of the principal … . Specifically, it provides that “[a] special proceeding may be commenced pursuant to [section 5-1510 (2)] by any person identified in [section 5-1505 (2) (a) (3)]”—which includes a personal representative of the estate of a deceased principal—as well as “the agent, the spouse, child or parent of the principal, the principal’s successor in interest, or any third party who may be required to accept a power of attorney” … . The legislature’s use of “any” and the disjunctive “or” in that statutory language evinces its intent to provide a list of equal but alternative petitioners … . Lange v Dixson, 2025 NY Slip Op 05352, Fourth Dept 10-3-25

Practice Point: Here petitioner’s sister acted as agent for their deceased mother. The death of the principal (the parties’ mother) did not affect petitioner’s standing to seek an accounting pursuant to the General Obligations Law.

 

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PLAINTIFF, WHO HAD PURCHASED 75% OF REAL PROPERTY FROM THE HEIRS OF THE ORIGINAL OWNER, SOUGHT PARTITION AND SALE; DEFENDANT, WHOSE MOTHER HAD PURCHASED THE PROPERTY, OWNED THE REMAINING 25%; UNDER THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (UPHPA), PLAINTIFF WAS REQUIRED TO NEGOTIATE A SETTLEMENT IN GOOD FAITH, BUT DID NOT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, determined that plaintiff, who had purchased 75% of a piece of real property from the heirs of the original owner, did not negotiate in good faith in seeking a judgment directing the partition and sale of the property. The Uniform Partition of Heirs Property Act (UPHPA) (RPAPL 993) applies to this situation, where defendant, an heir of the original owner, holds the remaining 25% of the property. The UPHPA required that plaintiff negotiate a sale price for its share of the property and/or a purchase price for defendant’s share of the property in good faith. Both Supreme Court and the Second Department determined plaintiff did not negotiate in good faith and therefore was not entitled to the partition and sale:

Pursuant to RPAPL 993, property that qualifies as “heirs property” within the meaning of RPAPL 993(2)(e) is subject to the mandates of the UPHPA, which supersedes the general partition statutes, including RPAPL 901 … .

Following the commencement of a partition action involving “heirs property,” RPAPL 993(5)(a) mandates that the matter shall proceed to a settlement conference, “for the purpose of holding settlement discussions, pertaining to the relative rights and obligations of the parties with respect to the subject property” … . …

RPAPL 993(5)(e) further requires that “[b]oth the plaintiff[ ] and defendant[ ] shall negotiate in good faith [during the UPHPA mandated settlement conferences] to reach a mutually agreeable resolution.” * * *

​… [A]s the defendant contends, the equitable factors set forth in RPAPL 993(9)(a) strongly favored her position that she was primarily interested in reaching an agreement that would allow her to maintain her ownership interest in the property. … [T]he defendant’s mother had purchased the property in 1970, approximately 50 years before the plaintiff acquired its interest in the property and commenced this action. … [T]he defendant had grown up in the property, her children had grown up there, and her son still lived there … . Additionally, the plaintiff, who is not a relative of either person from whom it purchased its 75% interest in the property …, allegedly purchased that interest for $136,000. Despite purchasing its interest in the property for approximately one quarter of the appraised value of that interest of $521,250, the plaintiff made a final offer to sell its interest in the property for $500,000, which would afford the plaintiff a significant profit … . Laurelton Estates, LLC v Prince, 2025 NY Slip Op 05226, Second Dept 10-1-25

Practice Point: Consult this opinion for insight into what the “good-faith-settlement-negotiation” requirements in the Uniform Partition of Heirs Property Act (UPHPA) are. The requirements were not met here. ​

 

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THE DEFENDANT HOSPITAL, CREMATORY AND FUNERAL CHAPEL RELIED IN GOOD FAITH ON THE INFORMATION AND DOCUMENTS PROVIDED BY DECEDENT’S DOMESTIC PARTNER; PLAINTIFFS, DECEDENT’S ADULT CHILDREN, RAISED NO OBJECTION TO THE ARRANGEMENTS MADE BY THE DOMESTIC PARTNER UNTIL A MONTH AFTER DEATH; THE “INFRINGEMENT OF RIGHTS OF SEPULCHER” ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “infringement of rights of sepulcher” proceeding should have been granted. The defendant hospital, crematory (Greenwood) and funeral chapel (Ackerman) relied in good faith on information provided by the decedent’s “alleged domestic partner,” Ms. Taddeo. Plaintiffs, the adult children of the decedent, had been informed of decedent’s death but did not communicate with defendants until a month later, after the cremation:

“No cemetery organization, business operating a crematory, natural organic reduction facility, or columbarium, funeral director, undertaker, embalmer or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person . . . is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section (Public Health Law § 4201[7], [a]).”

Furthermore, Ackerman and Greenwood were entitled to rely on cremation authorizations complying with section 4201(7) … . Ms. Taddeo, identifying herself as the decedent’s next of kin, provided a valid cremation authorization to both Ackerman and Greenwood instructing that his remains be cremated.

Neither Ackerman nor Greenwood had reason to question Ms. Taddeo’s status as the decedent’s domestic partner. Under Public Health Law § 4201(7), there is no affirmative duty to investigate absent “incomplete or suspicious documents or other information that would cast doubt upon an individual’s authority to control a decedent’s remains” … . There were no such red flags here. Ms. Taddeo represented herself to defendants as the decedent’s domestic partner, readily provided the decedent’s personal information, including his social security number, his date of birth, and his parents’ names, and there were no objections made by plaintiffs to Ms. Taddeo’s authority at the time of the decedent’s death. Felton v St. Joseph Hosp., 2025 NY Slip Op 05014, First Dept 9-18-25

Practice Point: Consult this decision for a rare discussion of the “rights of sepulcher.”​

 

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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to respond to the ninety-day CPLR 3216 demand to file a note of issue required dismissal of the medical malpractice action. The law-office-failure excuse was vague and conclusory and plaintiff did not demonstrate a meritorious cause of action:

“Where, as here, a plaintiff has been served with a 90-day demand . . . pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period” … . Here, the plaintiff did neither.

“In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates ‘a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action'” … . “‘Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue'” … . Here, the vague and conclusory claim of law office failure set forth by the plaintiff’s attorney did not constitute a justifiable excuse … . Moreover, the plaintiff failed to submit evidentiary proof from a medical expert demonstrating the existence of a potentially meritorious cause of action … . Kresberg v Kerr, 2025 NY Slip Op 03559, Second Dept 6-11-25

Practice Point: Here a vague and conclusory allegation of law-office-failure was not a reasonable excuse for failure to respond to the ninety-day demand to file a note of issue.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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THE 90-DAY TIME-LIMIT FOR FILING AND SERVING A NOTICE OF CLAIM AGAINST THE CITY FOR WRONGFUL DEATH RUNS FROM THE APPOINTMENT OF AN ADMINISTRATOR; HERE THE NOTICE OF CLAIM WAS TIMELY FOR THE WRONGFUL DEATH CAUSE OF ACTION; HOWEVER THE 90-DAY TIME-LIMIT FOR THE CAUSES OF ACTION FOR CONSCIOUS PAIN AND SUFFERING AND PREIMPACT TERROR RUNS FROM THE DATE OF THE ACCIDENT; THE NOTICE OF CLAIM SHOULD HAVE BEEN REJECTED AS UNTIMELY FOR THOSE TWO CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application to deem a notice of claim timely served for the conscious pain and suffering and preimpact terror causes of action in this pedestrian-bus-accident wrongful-death case should not have been granted. General Municipal Law 50-e provides that a notice of claim alleging wrongful death is timely filed and served within 90 days of the appointment of an administrator; that requirement was met here. The notice of claim was therefore timely for the wrongful death cause of action. However the wrongful-death notice-of-claim provision in General Municipal Law 50-e does not apply to the conscious pain and suffering and preimpact terror causes of action. The Second Department held that the notice of claim should have been rejected as untimely for those two causes of action:

Here, [defendant] NYCTA [New York City Transit Authority] did not acquire actual knowledge of the essential facts constituting the claims of conscious pain and suffering or preimpact terror within a reasonable time after the expiration of the 90-day statutory period … . “As a general rule, knowledge of an accident or occurrence by a municipality’s police or fire department cannot be imputed to another public or municipal corporation” … . Furthermore, the case file did not indicate that anyone associated with NYCTA acquired actual knowledge of essential facts constituting the subject claims.

As to the other relevant factors, the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve a notice of claim … . The petitioner also failed to meet her initial burden of presenting “some evidence or plausible argument” … to support a finding that NYCTA will not be substantially prejudiced by the approximate six-month delay from the expiration of the 90-day statutory period until the commencement of this proceeding … . Matter of Egalite v New York City Tr. Auth., 2025 NY Slip Op 02773, Second Dept 5-7-25

Practice Point: A notice of claim for wrongful death is timely filed and served within 90 days of the appointment of an administrator pursuant to General Municipal Law 50-e (a) (1). However, that statutory provision does not apply to causes of action for conscious pain and suffering and preimpact terror. Notices of claim for those causes of action must be filed and served within 90 days of the accident.

 

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