Borruso v. N.Y. Methodist Hosp.

• Decision Date: 31 May 2011
• Citation: 924 N.Y.S.2d 152,2011 N.Y. Slip Op. 04616,84 A.D.3d 1293
• Parties: Barbara BORRUSO, etc., et al., appellants,v.NEW YORK METHODIST HOSPITAL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1293

924 N.Y.S.2d 152

2011 N.Y. Slip Op. 04616

Barbara BORRUSO, etc., et al., appellants,

v.NEW YORK METHODIST HOSPITAL, et al., respondents.

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

May 31, 2011.

King & Streisfeld, Lake Success, N.Y. (Jeffrey D. Streisfeld of counsel), for appellants.Bartlett, McDonough & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Megan C. Wagner of counsel), for respondent New York Methodist Hospital.Gordon & Silber, P.C., New York, N.Y. (Andrew B. Kaufman and Tricia Barbera of counsel), for respondent Henry Tischler.Costello, Shea & Gaffney LLP, New York, N.Y. (Patrick G. Reidy of counsel), for respondentGerard K. Hanley.WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover damages for medical malpractice, etc., Barbara Borruso, as administrator of the estate of Gregory Borruso, and Barbara Borruso, individually, appeals from a judgment of the Supreme Court, Kings County(Ambrosio, J.), dated December 14, 2009, which, upon an order of the same court dated September 29, 2009, granting the defendants' separate motions pursuant to CPLR 1021 to dismiss the complaint for failure to timely substitute a representative, is in favor of the defendants and against them, dismissing the complaint.

ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs commenced this action in 1998, based on medical services rendered in 1997.The plaintiffGregory Borruso(hereinafter the decedent) died in 2001.In March and April 2009, the defendants separately moved pursuant to CPLR 1021 to dismiss the complaint for the plaintiffs' failure to timely substitute a representative from the decedent's estate for him as partyplaintiff.At the time the defendants made their separate motions, it had been approximately 12 years since the medical services complained of were rendered, 11 years since the plaintiffs commenced this action, 8 years since the decedent's death, 6 years since letters of administration were issued to the plaintiffBarbara Borruso(hereinafter the surviving plaintiff) as administrator of the estate, and 4 years since the plaintiffs' attorney, by his own admission, learned that a bankruptcy stay resulting from a bankruptcy filing of the insurer of the defendantGerard K. Hanley, had been lifted.In an order dated September 29, 2009, the Supreme Court granted the defendants' separate motions.The judgment appealed from, entered upon the order, is in favor of the defendants and against the plaintiffs, dismissing the complaint.We affirm.

CPLR 1021 provides, in pertinent part, “[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, however, such dismissal shall not be on the merits unless the court shall so indicate.”“ ‘CPLR 1021 requires a motion for substitution to be made within a reasonable time’ ”( Reed v. Grossi,59 A.D.3d 509, 511, 873 N.Y.S.2d 676, quotingMcDonnell v. Draizin,24 A.D.3d 628, 628, 808 N.Y.S.2d 398).“ ‘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 the defense has merit’ ”( Reed v. Grossi,59 A.D.3d at 511, 873 N.Y.S.2d 676, quotingMcDonnell v. Draizin,24 A.D.3d at 628–629, 808 N.Y.S.2d 398;seeRubino v. Krasinski,54 A.D.3d 1016, 1017, 865 N.Y.S.2d 130;Johnson v. Trivedi,41 A.D.3d 1259, 1260, 836 N.Y.S.2d 474;Bauer v. Mars Assoc.,35 A.D.3d 333, 334, 825 N.Y.S.2d 536).

Here, the surviving plaintiff failed to move within a reasonable time to substitute a representative of the decedent's estate for the decedent as partyplaintiff in this action.Her proffered...