Opinion
May 7, 1990
Appeal from the Supreme Court, Queens County (Katz, J.).
Ordered that the appeals by Long Island Jewish-Hillside Medical Center and Deepdale General Hospital from the decision dated August 15, 1988, are dismissed for failure to perfect, and because no appeal lies from a decision; and it is further,
Ordered that the appeal by John Byong-Ho Chang and Robert Barry Swersky from the decision dated August 15, 1988, is dismissed, because no appeal lies from a decision; and it is further,
Ordered that the appeal from the order dated October 20, 1988, is dismissed, as that order was superseded insofar as appealed from by the order dated April 12, 1989, made upon reargument; and it is further,
Ordered that the order dated October 20, 1988, is affirmed insofar as cross-appealed from; and it is further,
Ordered that the order dated April 12, 1989, is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs payable by the defendants John Byong-Ho Chang and Robert Barry Swersky.
Inasmuch as almost two years had passed from the death of Michael Sopcheck until the appointment of a representative for his estate, and no reasonable excuse for this inordinate delay was proffered, we conclude that the Supreme Court did not improvidently exercise its discretion in dismissing the derivative cause of action asserted on his behalf based on the failure to make timely substitution of a legal representative (see, CPLR 1015 [a]; Milam v. Gibson Cushman, 81 A.D.2d 555).
Nor did the court improvidently exercise its discretion in denying that branch of the motion by the defendants Chang and Swersky to dismiss the cause of action asserted by Helen Sopcheck. The parties were advised that all activity was to cease until the appointment of a legal representative for Michael Sopcheck. Accordingly, Helen Sopcheck's inaction during the period when the stay was in effect cannot be deemed dilatory or an indication of an intent to abandon her claim (see, Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819), and the defendants' motion to dismiss for failure to prosecute was properly denied. Mangano, P.J., Brown, Kooper and Harwood, JJ., concur.