In Palmer v. Selpan Elec. Co. (5 AD3d 248), on nearly identical facts, this Court reversed the denial of a CPLR 1021 motion and dismissed the complaint.Summary of this case from Washington v. Min Chung Hwan
Decided March 18, 2004.
Order, Supreme Court, Bronx County (George Salerno, J.), entered June 2, 2003, which denied defendants' motion to dismiss the action for failure to appoint and substitute a representative for the estate of the deceased plaintiff, without prejudice to renewal "upon a showing of undue delay in the appointment of an administrator," unanimously reversed, on the law and the facts, without costs, and the motion granted.
David Holmes, for Plaintiff.
Before: Tom, J.P., Andrias, Sullivan, Friedman, JJ.
It has been six years since the accident, five years since the commencement of the action, and four years since the death of the plaintiff. No representative has been substituted, despite numerous attempts over the last three years, by plaintiff's attorney, to have plaintiff's father appoint a representative. Accordingly, since substitution has not been made "within a reasonable time," defendant's motion to dismiss pursuant to CPLR 1021 should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.