| Fitzpatrick v Palazzo |
| 2007 NY Slip Op 10285 [46 AD3d 1414] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Mark J. Fitzpatrick, as Successor Executor of Patricia A.Fitzpatrick, Deceased, Respondent, v Ronald G. Palazzo, M.D., et al.,Appellants. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredMarch 15, 2007 in a medical malpractice action. The order, among other things, denieddefendants' motion to dismiss the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: This action was commenced by Patricia A. Fitzpatrick and her husband,Thomas M. Fitzpatrick, to recover damages for injuries sustained by Patricia arising from thealleged malpractice of defendants Ronald G. Palazzo, M.D. and Julie L. Mandaville, R.P.A.During the pendency of the action, both Patricia and her husband died. Contrary to the contentionof defendants, Supreme Court neither abused nor improvidently exercised its discretion indenying their motion to dismiss the complaint based on the failure to substitute Mark J.Fitzpatrick as a party plaintiff in a timely manner, and in granting the cross motion for, inter alia,an order substituting Mark as successor executor of Patricia's estate (see CPLR 1015,1021). The record establishes that defendants were not prejudiced by the delay in seeking thesubstitution, and there is a " 'strong public policy that matters should be disposed of on themerits' " (Johnson v Trivedi, 41AD3d 1259, 1260 [2007]; see Egrini v Brookhaven Mem. Hosp., 133 AD2d 610[1987]).
We further reject defendants' contention that the court erred in ordering the substitutionnunc pro tunc. By actively participating in the litigation with full knowledge that the originalplaintiffs had died and, indeed, in stipulating to the substitution of Mark, defendants waived theirpresent contention that all matters in the litigation that occurred before the substitution were anullity (see Abramowitz v American Gen. Contr. Co., 239 AD2d 303 [1997]; Durrantv Kelly, 186 AD2d 237 [1992], appeal dismissed 81 NY2d 758 [1992]).Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.