| Rubino v Krasinski |
| 2008 NY Slip Op 07228 [54 AD3d 1016] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Kathleen Rubino et al., Plaintiffs, v Cheryl A. Krasinski etal., Respondents, et al., Defendant. Donna Marie Jacobus, NonpartyAppellant. |
—[*1] Shaub Ahmuty Citrin & Spratt LLP, Lake Success, N.Y. (Christopher Simone, Robert M.Ortiz, and Deirdre E. Tracey of counsel), for respondent Cheryl A. Krasinski. Ryan & Henderson, P.C., Carle Place, N.Y. (Robert L. Ryan, Jr., of counsel), for respondentsLeonard J. Mondschein and Urology Associates, P.C. Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner and Daryl Paxsonof counsel), for respondents Lisa S. Moccio and Suzanne S. Moccio, as executors of the estate ofCarmine G. Moccio, Toufic Safa, Tarek Absi, Sharon McGlaughlin, Ted James, Richard Bronzo,Gwen Harris, and North Shore University Hospital.
In a consolidated action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., Donna Marie Jacobus, as executrix of the estate of Kathleen Rubino and successorexecutrix of the estate of James Rubino, appeals from an order of the Supreme Court, QueensCounty (O'Donoghue, J.), dated May 18, 2007, which denied her motion to substitute herself as aparty plaintiff in place of the deceased plaintiffs, to amend the caption accordingly, to lift the stayresulting from the death of Kathleen Rubino, and for a conference to establish a discoveryschedule, and granted that branch of the cross motion of the defendants Lisa S. Moccio andSuzanne S. Moccio, as executors of the estate of Carmine G. Moccio, Toufic Safa, Tarek Absi,Sharon McGlaughlin, Ted James, Richard Bronzo, Gwen Harris, and North Shore UniversityHospital, that branch of the separate cross motion of the defendants Leonard J. Mondschein andUrology [*2]Associates, P.C., and that branch of the separatecross motion of the defendant Cheryl A. Krasinski, which were pursuant to CPLR 1021 todismiss the complaint insofar as asserted against each of them.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with one billof costs payable by the respondents appearing separately and filing separate briefs, the motion ofDonna Marie Jacobus, as executrix of the estate of Kathleen Rubino and successor executrix ofthe estate of James Rubino, to substitute herself as a party plaintiff in place of the deceasedplaintiffs, to amend the caption accordingly, to lift the stay resulting from the death of KathleenRubino, and for a conference to set a discovery schedule is granted, and those branches of thecross motions which were to dismiss the complaint insofar as asserted against each of therespondents are denied.
In view of the relatively brief delay on the part of the appellant in moving, inter alia, tosubstitute herself as a party plaintiff (see Rosenfeld v Hotel Corp. of Am., 20 NY2d 25[1967]), the absence of any showing that the delay prejudiced the respondents, and the strongpublic policy that matters should be disposed of on the merits (see Johnson v Trivedi, 41 AD3d1259 [2007]; Encalada v City of New York, 280 AD2d 578 [2001]; Egrini vBrookhaven Mem. Hosp., 133 AD2d 610 [1987]), the Supreme Court improvidentlyexercised its discretion in denying her motion and granting those branches of the respondents'cross motions which were to dismiss the complaint insofar as asserted against each of thempursuant to CPLR 1021 (see Lewis vKessler, 12 AD3d 421 [2004]; LaMacchia v Rogers, 8 AD3d 346 [2004]). Lifson, J.P., Florio,Belen and Chambers, JJ., concur.