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White v. Diallo

Supreme Court, Appellate Division, Second Department, New York.
Dec 6, 2017
156 A.D.3d 664 (N.Y. App. Div. 2017)

Opinion

2016–03668 Index No. 18492/12

12-06-2017

Richard D. WHITE, as administrator of the estate of Kenneth Dalyrymple, respondent, v. Souleymane DIALLO, et al., appellants, et al., defendant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Aaron Haimowitz, Patrick J. Lawless, and I. Elie Herman of counsel), for appellants. Bragoli & Associates, P.C., Melville, N.Y. (Adrienne Hayes, Susan R. Nudelman, and Daniel Fried of counsel), for respondent.


Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Aaron Haimowitz, Patrick J. Lawless, and I. Elie Herman of counsel), for appellants.

Bragoli & Associates, P.C., Melville, N.Y. (Adrienne Hayes, Susan R. Nudelman, and Daniel Fried of counsel), for respondent.

RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDERIn an action to recover damages for personal injuries, the defendants Souleymane Diallo and Nevis Car & Limo Service, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 14, 2016, as denied their motion pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against them for failure to substitute a legal representative for the estate of the deceased plaintiff within a reasonable time.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action was commenced on September 13, 2012, by Kenneth Dalyrymple (hereinafter the decedent), who alleged that he was injured while he was a passenger in a vehicle driven by the defendant Souleymane Diallo and owned by the defendant Nevis Car & Limo Service, Inc. (hereinafter together the defendants), when that vehicle came in contact with a vehicle owned and operated by the defendant Tarrence C. Canty. In March 2013, the decedent died from unrelated causes. Thereafter, in September 2014, the defendants moved pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against them on the ground that there had been no substitution of a legal representative for the decedent's estate and the reasonable time to do so had expired. The Supreme Court, inter alia, denied the motion, and the defendants appeal.

CPLR 1021 provides, in pertinent part, that "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made." The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit (see Borruso v. New York Methodist Hosp., 84 A.D.3d 1293, 1294, 924 N.Y.S.2d 152 ; Reed v. Grossi, 59 A.D.3d 509, 511, 873 N.Y.S.2d 676 ; Bauer v. Mars Assoc., 35 A.D.3d 333, 333–334, 825 N.Y.S.2d 536 ; McDonnell v. Draizin, 24 A.D.3d 628, 628–629, 808 N.Y.S.2d 398 ).

Here, the record does not support the defendants' contentions that there was a lack of diligence in the substitution of an administrator, or that they were prejudiced by the delay in the appointment of the administrator (see Public Adm'r v. Levine, 142 A.D.3d 467, 468–469, 37 N.Y.S.3d 475 ; Wynter v. Our Lady of Mercy Med. Ctr., 3 A.D.3d 376, 378, 771 N.Y.S.2d 94 ; see also Foley v. Foley, 151 A.D.3d 1018, 1018, 57 N.Y.S.3d 211 ). Moreover, there is a strong public policy that matters should be disposed of on the merits (see e.g. Largo–Chicaiza v. Westchester Scaffold Equip. Corp., 90 A.D.3d 716, 717, 934 N.Y.S.2d 354 ; Reed v. Grossi, 59 A.D.3d at 511–512, 873 N.Y.S.2d 676 ; Rubino v. Krasinski, 54 A.D.3d 1016, 1017, 865 N.Y.S.2d 130 ; Lewis v. Kessler, 12 A.D.3d 421, 421–422, 784 N.Y.S.2d 574 ; Encalada v. City of New York, 280 A.D.2d 578, 579, 720 N.Y.S.2d 806 ; Egrini v. Brookhaven Mem. Hosp., 133 A.D.2d 610, 519 N.Y.S.2d 716 ). Accordingly, the Supreme Court properly denied the defendants' motion to dismiss the complaint insofar as asserted against them (see Largo–Chicaiza v. Westchester Scaffold Equip. Corp., 90 A.D.3d at 717, 934 N.Y.S.2d 354 ; Egrini v. Brookhaven Mem. Hosp., 133 A.D.2d at 610, 519 N.Y.S.2d 716 ; see also Reed v. Grossi, 59 A.D.3d at 511–512, 873 N.Y.S.2d 676 ; Rubino v. Krasinski, 54 A.D.3d at 1017, 865 N.Y.S.2d 130 ; Lewis v. Kessler, 12 A.D.3d at 421–422, 784 N.Y.S.2d 574 ; Encalada v. City of New York, 280 A.D.2d at 579, 720 N.Y.S.2d 806 ).

The parties' remaining contentions are not properly before this Court or need not be reached in light of our determination (see Gairy v. 3900 Harper Ave., LLC, 146 A.D.3d 938, 939, 45 N.Y.S.3d 564; Alejandro v. North Tarrytown Realty Assoc., 129 A.D.3d 749, 750, 10 N.Y.S.3d 616 ).

BALKIN, J.P., HINDS–RADIX, DUFFY and CONNOLLY, JJ., concur.


Summaries of

White v. Diallo

Supreme Court, Appellate Division, Second Department, New York.
Dec 6, 2017
156 A.D.3d 664 (N.Y. App. Div. 2017)
Case details for

White v. Diallo

Case Details

Full title:Richard D. WHITE, as administrator of the estate of Kenneth Dalyrymple…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Dec 6, 2017

Citations

156 A.D.3d 664 (N.Y. App. Div. 2017)
64 N.Y.S.3d 563
2017 N.Y. Slip Op. 8550

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