Mansfield Contracting Corp. v. Prassas

183 A.D.2d 878, 584 N.Y.S.2d 129, 1992 N.Y. App. Div. LEXIS 7603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1992
• Status: Published

Opinion

— In an action, inter alia, for rescission of a settlement agreement in which the late defendant Phillip E. Prassas counterclaimed for enforcement of that agreement and other relief, RTS Construction Corp. and George E. Prassas, as administrator of the estate of the late Phillip E. Prassas, appeal from an order of the Supreme Court, Queens County (Dunkin, J.), dated February 6, 1990, which denied the administrator’s motion to be substituted as a party defendant and granted the plaintiffs’ cross motion to dismiss the defendants’ counterclaims with prejudice.

Ordered that the order is affirmed, without costs or disbursements.

In light of the five-year period of inactivity in this case between the appointment of the appellant George E. Prassas as the administrator of his late brother’s estate and the instant motion seeking his substitution in this action, the insufficiency of the excuse proffered for the delay, the absence of any affidavit of merit, and the fact that the plaintiffs no longer wish to prosecute their action against the defendants, we find that the court did not improvidently exercise its discretion in denying the motion for substitution and granting the plaintiffs’ cross motion to dismiss the defendants’ counterclaims with prejudice (see, CPLR 1021; Hemphill v Rock, 87 AD2d 836; Dorney v Reddy, 45 AD2d 754; Meier v Shively, 10 AD2d 566; Ruderman v Feffer, 10 AD2d 704; Mazzacano v Jordan, 40 Misc 2d 901).

We have reviewed the appellants’ remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Miller and Pizzuto, JJ., concur.