| Howlader v Lucky Star Grocery, Inc. |
| 2017 NY Slip Op 06067 |
| Decided on August 9, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2014-11194
(Index No. 22338/08)
v
Lucky Star Grocery, Inc., defendant, 2100 White Plains Road Corp., et al., respondents.
John J. Ciafone, Astoria, NY, for appellant.
Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for respondent 2100 White Plains Road Corp.
Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Marta Ross of counsel), for respondent City of New York.
DECISION & ORDER
In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Queens County (Flug, J.), entered September 2, 2014, which granted that branch of the motion of the defendant 2100 White Plains Road Corp. which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it for failure to timely substitute a representative for the deceased plaintiff, and the separate motion of the defendant City of New York seeking the same relief as to it.
ORDERED that the order is affirmed, with one bill of costs.
"CPLR 1021 requires a motion for substitution to be made within a reasonable time" (McDonnell v Draizin, 24 AD3d 628, 628; see Reed v Grossi, 59 AD3d 509, 511). "The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit" (Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d 618, 619; see Alejandro v North Tarrytown Realty Assoc., 129 AD3d 749, 749; Riedel v Kapoor, 123 AD3d 996, 996).
Here, the plaintiff's counsel failed to demonstrate that he made any diligent efforts to substitute a representative for the deceased plaintiff. Additionally, the plaintiff's counsel did not demonstrate a reasonable excuse for failing to seek a substitution. Further, the plaintiff's counsel failed to submit an affidavit of merit, and did not rebut the contention of the defendant 2100 White Plains Road Corp. (hereinafter 2100), joined by the defendant City of New York, that they were prejudiced in their ability to defend the case. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of 2100's motion which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it for failure to timely substitute a representative for the [*2]deceased plaintiff, and the separate motion of the City seeking the same relief as to it (see Alejandro v North Tarrytown Realty Assoc., 129 AD3d at 749; Terpis v Regal Hgts. Rehabilitation & Health Care Ctr., Inc., 108 AD3d at 619; Suciu v City of New York, 239 AD2d 338).
RIVERA, J.P., ROMAN, MILLER and DUFFY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court