Urena v. Danny's Furniture Inc.

2025 NY Slip Op 30388(U)

• Court: New York Supreme Court, New York County
• Decided: January 29, 2025
• Docket: Index No. 156994/2020
• Status: Unpublished

Opinion

Urena v Danny's Furniture Inc. 2025 NY Slip Op 30388(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 156994/2020 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 156994/2020 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/30/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice -------------------------------------------X 156994/2020 INDEX NO.

RAMON URENA, MOTION DATE 07/18/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

DANNY'S FURNITURE INC.,RENT -A-CENTER EAST INC. DECISION + ORDER ON MOTION Defendant. -----------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 17, 18, 19, 20, 21, 22,23,24,25,26, 27, 28,29, 30, 31, 32 were read on this motion to/for DISMISS

Upon the foregoing documents, and after a final submission date of November 19, 2024,

Defendant Rent-A-Center East Inc. 's ("Defendant") motion to dismiss Plaintiff Ramon Urena's

("Decedent") Complaint pursuant to CPLR 1021 for failure to substitute an administrator of

Decedent's estate is denied. The cross-motion to substitute Mariel Elisa Urena as administrator of

Decedent's estate and to amend the caption is granted.

Plaintiff passed away in December of 2020 while hospitalized for a heart attack in the

Dominican Republic. The appointment of an administrator was complicated by Plaintiffs

somewhat unique familial circumstances: Decedent was survived by a biological daughter, two

adoptive daughters, a spouse, a divorce from a prior marriage in the Dominican Republic, two

other daughters born in the Dominican Republic, and as represented by counsel, a live-in girlfriend

of 38 years. Appointment of an administrator was further delayed due to documentation required

from the Dominican Republic, and although the estate was pending review in Surrogate's Court,

Letters of Administration were only issued on August 1, 2024 (see NYSCEF Doc. 31 ).

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Meanwhile, just prior to the Letters of Administration being issued, Defendant moved to

dismiss this action in July of 2024. On August 27, 2024, counsel cross-moved to substitute

Decedent's eldest daughter, Mariel Elisa Urena as administrator of his estate. Defendant argues

that this case should be dismissed because substitution was not made "within a reasonable time."

This Court disagrees and denies Defendant's motion.

As a preliminary matter, there is a strong public policy in favor of having cases decided on

the merits (Gecaj v Gjonaj Realty & Management Corp., 149 AD3d 600 [1st Dept 2017]).

Moreover, the Court finds that the Decedent's complicated and international family structure

provides a reasonable excuse for the delay in substituting an administrator, and once letters of

administration were issued, counsel for the decedent showed diligence by promptly cross-moving

for substitution (see Velez v New York Presbyterian Hosp., 145 AD3d 632 [1st Dept 2016]

[showing of reasonable excuse and merits of action warranted denial of motion to dismiss and

granting substitution]). Further, the Court is satisfied with a demonstration of the potential merits

of the action as the Decedent personally verified the pleadings (see NYSCEF Doc. 1).

Defendant's bare allegations of prejudice due to the passage of time are insufficient to

defeat Plaintiffs cross-motion (see Public Adm 'r v Levine, 142 AD3d 467 [1st Dept 2016]). This

is especially the case where Defendant, who is presumably an owner or lessee of the premises, has

not provided any affidavit that it does not have in its possession CCTV footage of the incident or

an incident report. Further, there are likely patient narratives within the medical records detailing

the incident and the decedent's sister may be a witness who can testify further as to how the

incident happened.

Although Defendant seeks to obtain dismissal based on Plaintiffs failure to include a word

count certification, the Court finds dismissal of a Complaint based on such a minor technicality

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would run afoul of this State's public policy in favor of having cases decided on the merits, and in

any event, CPLR § 200 I allows this Court to overlook this minor mistake. Likewise, the Court

finds dismissal of the action because Plaintiffs counsel failed to strictly follow the wording of

CPLR § 2106 in authoring their affirmation to be too harsh of a result. In any event, CPLR

§ 2106 docs not state that it must be followed strictly, but that an affirmation must be

"substantially" in the following form - with the thrust of the mandate being that the affirmation is

made under the penalties of perjury. Here, Plaintiffs counsel's affirmation was made "under

penalties of perjury" (see NYSCEF Doc. 30). Therefore, Defendant's motion is denied, and

Plaintiffs cross-motion is granted.

Accordingly, it is hereby,

ORDERED that Defendant's motion to dismiss Plaintiffs Complaint for failure to

substitute timely an administrator is denied; and it is further

ORDERED that Plaintiffs cross-motion to substitute Mariel Elisa Urena as administrator

of Decedent's estate and to amend the caption is granted; and it is further

ORDERED that Mariel Elisa Urena, as limited administrator of the estate of Ramon Urena,

is substituted as the plaintiff in place and instead of Ramon Urena, now deceased; and it is further

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ORDERED that the caption of the action is amended to read as follows:

SUPREME COURT OF THE STATE OF NEW YORK -------------------------------------------------------------------------X MARIEL ELISA URENA, as Limited Administrator of the Estate Of RAMON URENA, Deceased,

Index No.: 157481/2022 Plaintiff, -against-

DANNY'S FURNITURE INC and RENT-A-CENTER EAST, Inc., Defendants ------------------------------------------------------------------------X ; and it is further ORDERED that within ten days of entry, Plaintiff shall serve a copy of this Order with

notice of entry upon the Trial Support Office, and shall file the notice required by CPLR § 8019(c)

and a completed Form EF-22 with the County Clerk in accordance with the procedures set forth

in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed

Cases(accessible at the "E-Filing" page on the court's website at the

address www.nycourts.gov/supctmanh), and the Trial Support Office shall thereupon amend

the court records accordingly; and it is further

ORDERED that the automatic stay imposed by decedent Ramon Urena's death hereby is

vacated and dissolved; and it is further

ORDERED that the parties are directed to meet and confer and, on or before February 25,

2025, submit a proposed preliminary conference order to the Court via e-mail to

_bgilmartin@nycourts.gov. In the event the parties cannot agree to a proposed preliminary

conference order, they shall appear for an in-person preliminary conference on February 26, 2025

at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York; and it is further

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ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

1/29/2025 DATE MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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