Foley v. Foley

Appellate Division of the Supreme Court of New York

Foley v. Foley

2017 NY Slip Op 5200, 151 A.D.3d 1018, 54 N.Y.S.3d 593

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2017

Docket2015-12645

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 5200 (Foley v. Foley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foley v. Foley, 2017 NY Slip Op 5200, 151 A.D.3d 1018, 54 N.Y.S.3d 593 (N.Y. Ct. App. 2017).

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Opinion

Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated October 28, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were, in effect, pursuant to CPLR 10Í5 (a) and 1021 to substitute Benjamin Foley as a defendant in this action and to amend the caption accordingly.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the contention of the appellant, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff’s motion which were, in effect, pursuant to CPLR 1015 (a) and 1021 to substitute the appellant, as a co-executor of the estate of his late father, Michael Foley (hereinafter the decedent), as a defendant in this divorce action. The plaintiff successfully demonstrated that her delay in seeking the substitution was not unreasonable, that she had satisfactory explanations for at least a portion of the delay, and that her claim against the decedent’s estate was potentially meritorious. Moreover, the appellant was well aware of the plaintiff’s claim against the estate throughout the proceedings, and there was a complete absence of any prejudice to the estate that would result from granting the motion. Under these circumstances, there is no basis upon which to disturb the court’s determination (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25 [1967]; Largo-Chicaiza v Westchester Scaffold Equip. Corp., 90 AD3d 716 [2011]; Rubino v Krasinski, 54 AD3d 1016 [2008]; Lewis v Kessler, 12 AD3d 421 [2004]; Encalada v City of New York, 280 AD2d 578 [2001]; Egrini v Brookhaven Mem. Hosp., 133 AD2d 610 [1987]).

Mastro, J.P., Dillon, Roman and Brathwaite Nelson, JJ., concur.

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Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated October 28, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were, in effect, pursuant to CPLR 10Í5 (a) and 1021 to substitute Benjamin Foley as a defendant in this action and to amend the caption accordingly.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the contention of the appellant, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff’s motion which were, in effect, pursuant to CPLR 1015 (a) and 1021 to substitute the appellant, as a co-executor of the estate of his late father, Michael Foley (hereinafter the decedent), as a defendant in this divorce action. The plaintiff successfully demonstrated that her delay in seeking the substitution was not unreasonable, that she had satisfactory explanations for at least a portion of the delay, and that her claim against the decedent’s estate was potentially meritorious. Moreover, the appellant was well aware of the plaintiff’s claim against the estate throughout the proceedings, and there was a complete absence of any prejudice to the estate that would result from granting the motion. Under these circumstances, there is no basis upon which to disturb the court’s determination (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25 [1967]; Largo-Chicaiza v Westchester Scaffold Equip. Corp., 90 AD3d 716 [2011]; Rubino v Krasinski, 54 AD3d 1016 [2008]; Lewis v Kessler, 12 AD3d 421 [2004]; Encalada v City of New York, 280 AD2d 578 [2001]; Egrini v Brookhaven Mem. Hosp., 133 AD2d 610 [1987]).

Mastro, J.P., Dillon, Roman and Brathwaite Nelson, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 5200, 151 A.D.3d 1018, 54 N.Y.S.3d 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-foley-nyappdiv-2017.

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