Foley v. Foley

• Decision Date: 28 June 2017
• Citation: 54 N.Y.S.3d 593 (Mem)
• Parties: Teresa FOLEY, respondent, v. Michael FOLEY, defendant; Benjamin Foley, nonparty-appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1018

54 N.Y.S.3d 593 (Mem)

Teresa FOLEY, respondent,

v. Michael FOLEY, defendant;Benjamin Foley, nonparty-appellant.

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

June 28, 2017.

Benjamin Foley, Hastings–on–Hudson, NY, nonparty-appellant pro se.

Lenihan & Associates, LLC, White Plains, NY (James Michael Lenihan of counsel), for respondent.

Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated October 28, 2015. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were, in effect, pursuant to CPLR 1015(a) and 1021 to substitute Benjamin Foley as a defendant in this action and to amend the caption accordingly.

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

Contrary to the contention of the appellant, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff's motion which were, in effect, pursuant to CPLR 1015(a) and 1021 to substitute the appellant, as a co-executor of the estate of his late father, Michael Foley (hereinafter the decedent), as a defendant in this divorce action. The plaintiff successfully demonstrated that her delay in seeking the substitution was not unreasonable, that she had satisfactory explanations for at least a portion of the delay, and that her claim against the decedent's estate was potentially meritorious. Moreover, the appellant was well aware of the plaintiff's claim against the estate throughout the proceedings, and there was a complete absence of any prejudice to the estate that would result from granting the motion. Under these circumstances, there is no basis upon which to disturb the court's determination (see Rosenfeld v. Hotel Corp. of Am., 20 N.Y.2d 25, 281 N.Y.S.2d 308, 228 N.E.2d 374 ; Largo–Chicaiza v Westchester Scaffold Equip. Corp., 90 A.D.3d 716, 934 N.Y.S.2d 354 ; Rubino v. Krasinski, 54 A.D.3d 1016, 865 N.Y.S.2d 130 ; Lewis v. Kessler, 12 A.D.3d 421, 784 N.Y.S.2d 574 ; Encalada v. City of New York, 280 A.D.2d 578, 720 N.Y.S.2d 806 ; Egrini v. Brookhaven Mem. Hosp., 133 A.D.2d 610, 519 N.Y.S.2d 716 ).

MASTRO, J.P., DILLON, ROMAN and BRATHWAITE NELSON, JJ., concur.