Leroy v. Morningside House Nursing Home Co., Inc.

126 A.D.3d 652, 4 N.Y.S.3d 486

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2015
• Docket: 14680 25432/02
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 4, 2013, which denied the motion of Karen Leroy, the administrator of the estate of Maureen Leroy, for an order, among other things, amending the caption to substitute her as plaintiff, and dismissed the action with prejudice, unanimously affirmed, without costs.

The court correctly found that a prior order dismissing the complaint for want of prosecution pursuant to CPLR 3216 was a nullity, because it was issued after plaintiffs death and before the substitution of a legal representative for her (see Griffin v Manning, 36 AD3d 530, 532 [1st Dept 2007]; see also Cueller v Betanes Food, Corp., 24 AD3d 201 [1st Dept 2005], lv denied 6 NY3d 708 [2006]). The court also properly denied the motion to substitute the administrator as plaintiff and properly dismissed the matter on the merits, since the motion was not made “within a reasonable time” (CPLR 1021). The administrator offered no explanation for failing to seek substitution until nearly 10 years after plaintiffs death, and the delay prejudices defendant’s ability to defend the action (see Cueller, 24 AD3d at 201; see also Quijano v City of New York, 76 AD3d 937, 938 [1st Dept 2010]).

We have considered the administrator’s remaining contentions and find them unavailing.

Concur — Friedman, J.P., Renwick, Moskowitz, Richter and Clark, JJ.