Palmer v. Selpan Electric Co.

5 A.D.3d 248, 773 N.Y.S.2d 289, 2004 N.Y. App. Div. LEXIS 2813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (George Salerno, J.), entered June 2, 2003, which denied defendants’ motion to dismiss the action for failure to appoint and substitute a representative for the estate of the deceased plaintiff, without prejudice to renewal “upon a showing of undue delay in the appointment of an administrator,” unanimously reversed, on the law and the facts, without costs, and the motion granted.

It has been six years since the accident, five years since the commencement of the action, and four years since the death of the plaintiff. No representative has been substituted, despite numerous attempts over the last three years, by plaintiffs attorney, to have plaintiffs father appoint a representative. Accordingly, since substitution has not been made “within a reasonable time,” defendant’s motion to dismiss pursuant to CPLR 1021 should have been granted. Concur—Tom, J.P., Andrias, Sullivan and Friedman, JJ.