| Sanders v New York City Hous. Auth. |
| 2011 NY Slip Op 05479 [85 AD3d 1005] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Michael Sanders, Plaintiff, v New York City HousingAuthority, Respondent. Michelle Sanders, Nonparty Appellant. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner ofcounsel), for respondent.
In an action to recover damages for personal injuries, nonparty Michelle Sanders, asadministratrix of the estate of the plaintiff, Michael Sanders, appeals from an order of theSupreme Court, Kings County (Bayne, J.), dated October 23, 2009, which denied her motion, ineffect, to vacate the dismissal of the action pursuant to CPLR 3216 and to extend the time to filea note of issue, and, pursuant to CPLR 1021, to be substituted as a plaintiff in place of MichaelSanders and to amend the caption accordingly.
Ordered that the order is affirmed, with costs.
On June 4, 2002, the attorney for the plaintiff, Michael Sanders, signed a complianceconference order directing the plaintiff to file a note of issue on or before November 20, 2002,and warning that failure to comply would result in the dismissal of the action. The plaintiff failedto comply with that order either by filing a timely note of issue or by moving to extend the periodfor doing so, and the action was dismissed on November 29, 2002, pursuant to CPLR 3216. OnJuly 21, 2003, the plaintiff died intestate, and the appellant, Michelle Sanders, was appointedadministratrix on May 2, 2006. Three years after her appointment, the appellant moved, interalia, to vacate the dismissal of the action and to be substituted as a plaintiff in place of thedecedent. The Supreme Court denied the motion.
In light of the approximate three-year delay between the death of the plaintiff and theappointment of the appellant as the administratrix of the plaintiff's estate, the further three-yeardelay between the appointment of the appellant as administratrix and the underlying motion, interalia, seeking her substitution in this action, the failure to proffer any excuse for the delays, andthe failure to show that the action was potentially meritorious, that branch of the appellant'smotion which was for substitution was properly denied (see CPLR 1021; Reed v Grossi, 59 AD3d 509, 511[2009]; McDonnell v Draizin, 24AD3d 628 [2005]; Washington vMin Chung Hwan, 20 AD3d 303, 305 [2005]).[*2]
Furthermore, that branch of the appellant's motion whichwas to vacate the dismissal of the action pursuant to CPLR 3216 also was properly denied, as shefailed to demonstrate a justifiable excuse for the plaintiff's delay in properly responding to the90-day notice and a potentially meritorious cause of action (see CPLR 3216 [e]; Fenner v County of Nassau, 80 AD3d555, 556 [2011]; Petersen vLysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]; Matter of Bloom v Lubow, 45 AD3d680 [2007]; Lugauer v Forest CityRatner Co., 44 AD3d 829, 830 [2007]; Sortino v Fisher, 20 AD2d 25, 31-32[1963]). Dillon, J.P., Covello, Balkin, Lott and Roman, JJ., concur.