Rose v. Frankel

83 A.D.3d 607, 920 N.Y.S.2d 912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2011
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered October 19, 2009, which, pursuant to an order, same court and Justice, entered on or about July 31, 2009, denied plaintiffs’ motion to, among other things, substitute estate administratrix Georgia Rose for decedent William A. Hamilton and granted defendants’ cross motions to dismiss the complaint, unanimously affirmed, without costs.

Plaintiffs may not argue for the first time on appeal that there was defective notice of the cross motions to dismiss for failure to timely substitute pursuant to CPLR 1021 (cf. Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Even if we were to reach the issue, we would find that, because plaintiffs moved for substitution pursuant to CPLR 1015, Supreme Court had jurisdiction to decide defendants’ cross motions (see Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005]).

Given that this case will turn mainly on medical records rather than witnesses’ memories, defendants were not prejudiced by the delay in moving for substitution (see Schwartz v Montefiore Hosp. & Med. Ctr., 305 AD2d 174, 176 [2003]). However, plaintiffs failed to submit a physician’s affirmation of merit and provided no justification, other than law office failure, for the almost five-year delay in making the motion (cf. Wynter v Our Lady of Mercy Med. Ctr., 3 AD3d 376, 378-379 [2004]). Concur—Gonzalez, P.J., Sweeny, Moskowitz, Acosta and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 31823(U).]