Orellana v. Malek

Appellate Division of the Supreme Court of New York

Orellana v. Malek

116 A.D.2d 557, 497 N.Y.S.2d 412, 1986 N.Y. App. Div. LEXIS 51411

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

DecidedJanuary 13, 1986

StatusPublished

Cited by1 cases

This text of 116 A.D.2d 557 (Orellana v. Malek) 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

Orellana v. Malek, 116 A.D.2d 557, 497 N.Y.S.2d 412, 1986 N.Y. App. Div. LEXIS 51411 (N.Y. Ct. App. 1986).

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Opinion

— In an action to recover damages for medical malpractice, defendant Malek appeals from an order of the Supreme Court, Kings County (Morton, J.), dated January 28, 1985, which denied his motion to dismiss the complaint for failure to substitute the deceased plaintiffs estate as the proper party plaintiff within a reasonable time, and which ordered substitution of the administratrix of the decedent’s estate.

Order affirmed, with costs.

It was not an abuse of discretion for Special Term to order substitution. Appellant’s motion to dismiss was made within a year of the plaintiffs death and within six months of the appointment of an administratrix (see, Rosenfeld v Hotel Corp., 20 NY2d 25, 29). Furthermore, in the absence of a showing of prejudice to appellant, or placement upon the Trial Calendar, dismissal for failure to substitute in an action which had been pending for only about a year at the time the motion to dismiss was made was not warranted (see, Almo Serv. v Weisskopf, 58 AD2d 550; cf. Meier v Schively, 10 AD2d 566; Ruderman v Feffer, 10 AD2d 704; Hemphill v Rock, 87 AD2d 836). Gibbons, J. P., Thompson, Brown and Eiber, JJ., concur.

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— In an action to recover damages for medical malpractice, defendant Malek appeals from an order of the Supreme Court, Kings County (Morton, J.), dated January 28, 1985, which denied his motion to dismiss the complaint for failure to substitute the deceased plaintiffs estate as the proper party plaintiff within a reasonable time, and which ordered substitution of the administratrix of the decedent’s estate.

Order affirmed, with costs.

It was not an abuse of discretion for Special Term to order substitution. Appellant’s motion to dismiss was made within a year of the plaintiffs death and within six months of the appointment of an administratrix (see, Rosenfeld v Hotel Corp., 20 NY2d 25, 29). Furthermore, in the absence of a showing of prejudice to appellant, or placement upon the Trial Calendar, dismissal for failure to substitute in an action which had been pending for only about a year at the time the motion to dismiss was made was not warranted (see, Almo Serv. v Weisskopf, 58 AD2d 550; cf. Meier v Schively, 10 AD2d 566; Ruderman v Feffer, 10 AD2d 704; Hemphill v Rock, 87 AD2d 836). Gibbons, J. P., Thompson, Brown and Eiber, JJ., concur.

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Bluebook (online)

116 A.D.2d 557, 497 N.Y.S.2d 412, 1986 N.Y. App. Div. LEXIS 51411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orellana-v-malek-nyappdiv-1986.

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