| Reed v Grossi |
| 2009 NY Slip Op 01096 [59 AD3d 509] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Donald Reed, Plaintiff, v Eugene Grossi et al.,Respondents. Beulah Nelson-Spellman, Nonparty Appellant. |
—[*1] Bower & Lawrence, P.C., New York, N.Y. (Mitchell A. Greene of counsel), forrespondents.
In an action to recover damages for medical malpractice, Beulah Nelson-Spellman, executorof the estate of Donald Reed, appeals from an order of the Supreme Court, Kings County(Levine, J.), entered August 22, 2007, which denied her motion, in effect, for leave to substituteherself as a party plaintiff in place of Donald Reed, to amend the caption accordingly, and tovacate the stay of proceedings resulting from the death of Donald Reed and, upon a so-orderedstipulation dated April 21, 2005, granted the defendants' cross motion pursuant to CPLR 3216 (a)to dismiss the complaint for failure to prosecute.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, the so-ordered stipulation dated April 21, 2005 is vacated, the motion ofBeulah Nelson-Spellman, executor of the estate of Donald Reed, in effect, for leave to substituteherself as a party plaintiff in place of Donald Reed, to amend the caption accordingly, and tovacate the stay of proceedings resulting from the death of Donald Reed, is granted, thedefendants' cross motion pursuant to CPLR 3216 (a) to dismiss the complaint for failure toprosecute is denied, and the matter is remitted to the Supreme Court, Kings County, for furtherproceedings, including the entry of an order amending the caption accordingly.
On or about October 27, 2000 Donald Reed underwent open-heart surgery, performed by thedefendant Eugene Grossi at the defendant New York University Medical Center, a division of[*2]the defendant New York University. On February 13, 2003Reed commenced the instant action, alleging that he sustained personal injuries and damages asa result of the alleged medical malpractice committed by the defendants. According to thecomplaint, the defendants negligently left surgical instruments in his person, requiring a secondsurgery. Issue was joined, and discovery proceeded slowly.
On July 1, 2004 Reed died from unspecified causes. At a compliance conference held onSeptember 14, 2004 the Supreme Court was advised of Reed's death, prompting the matter to bestayed and adjourned, pending the appointment of a representative of Reed's estate. While Reed'scounsel appeared for compliance conferences on several occasions thereafter, no appointment ofa representative of the estate had been effectuated. Notwithstanding the statutory stay ofproceedings necessitated by Reed's death (see CPLR 1015), counsel entered into astipulation dated April 21, 2005, which was so-ordered by the court, in effect, directing thedismissal of the complaint "without prejudice and [with] leave to renew within 9 months, onconsent."
After protracted proceedings, the Surrogate's Court, Kings County, appointed nonpartyBeulah Nelson-Spellman as executor of Reed's estate, and issued letters testamentary dated April30, 2007. Within weeks, Nelson-Spellman moved, in effect, to substitute herself as the partyplaintiff in the action in place of Reed, to amend the caption accordingly, and to vacate thestatutory stay resulting from Reed's death, and the defendants cross-moved pursuant to CPLR3216 (a) to dismiss the complaint for failure to prosecute. The Supreme Court deniedNelson-Spellman's motion and granted the defendants' cross motion to dismiss the complaint.We reverse.
CPLR 1021 provides that "[i]f the event requiring substitution occurs before final judgmentand substitution is not made within a reasonable time, the action may be dismissed as to the partyfor whom substitution should have been made, however, such dismissal shall not be on themerits unless the court shall so indicate." "CPLR 1021 requires a motion for substitution to bemade within a reasonable time. The determination of reasonableness requires consideration ofseveral factors, including the diligence of the party seeking substitution, prejudice to the otherparties, and whether the party to be substituted has shown that the action or the defense hasmerit" (McDonnell v Draizin, 24AD3d 628, 628-629 [2005]; seeRubino v Krasinski, 54 AD3d 1016, 1017 [2008]; Johnson v Trivedi, 41 AD3d 1259, 1260 [2007]; Bauer v Mars Assoc., 35 AD3d333, 334 [2006]).
Applying these principles to the matter at bar, the Supreme Court improvidently exercised itsdiscretion in granting the defendants' cross motion pursuant to CPLR 3216 (a) to dismiss thecomplaint for failure to prosecute (see CPLR 1021; McDonnell v Draizin, 24AD3d at 628-629). "It is well settled that the death of a party stays the action as to him or herpending the substitution of a legal representative, and any determination rendered without such asubstitution is generally deemed a nullity" (Hicks v Jeffrey, 304 AD2d 618, 618 [2003];see CPLR 1015; Rumola vMaimonides Med. Ctr., 37 AD3d 696, 697 [2007]; Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069 [2005];Anderson v Gilliland, 245 AD2d 654 [1997]). As such, the so-ordered stipulation datedApril 21, 2005, in effect, directing the dismissal of the complaint, was a nullity (see Singer v Riskin, 32 AD3d839, 840 [2006]; Lewis vKessler, 12 AD3d 421, 422 [2004]), and thus without any force or effect.
Moreover, in light of the reasonably diligent steps undertaken by Reed's former counsel tohave a representative of the estate appointed after Reed's death, the absence of any showing ofprejudice (see Egrini v Brookhaven Mem. Hosp., 133 AD2d 610 [1987]), and the strongpublic policy that matters be disposed of on the merits, the Supreme Court should have grantedthe motion for [*3]substitution, amended the caption accordingly,and vacated the stay of proceedings resulting from Reed's death, and denied the defendants' crossmotion pursuant to CPLR 3216 (a) to dismiss the complaint (see Rubino v Krasinski, 54AD3d at 1017; Johnson v Trivedi, 41 AD3d at 1260; Encalada v City of NewYork, 280 AD2d 578 [2001]). Fisher, J.P., Miller, Carni and Balkin, JJ., concur.