Mansfield Contracting Corp. v. Prassas

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Mansfield Contracting Corp. v. Prassas, 584 N.Y.S.2d 129, 183 A.D.2d 878 (N.Y. App. Div. 1992)
• Decision Date: 26 May 1992
• Parties: MANSFIELD CONTRACTING CORP., et al., Respondents, v. Phillip E. PRASSAS, Defendant, RTS Construction Corp., Defendant-Appellant; George E. Prassas, as Administrator of Phillip E. Prassas, Nonparty Appellant.

Page 129

584 N.Y.S.2d 129

183 A.D.2d 878

MANSFIELD CONTRACTING CORP., et al., Respondents, v. Phillip E. PRASSAS, Defendant RTS Construction Corp., Defendant-Appellant George E. Prassas, as Administrator of Phillip E. Prassas Nonparty Appellant.

Supreme Court, Appellate Division Second Department.

May 26, 1992.

D'Elia & Turtletaub, Port Washington (Sheldon J. Turtletaub, of counsel), for appellants.

Lane & Mittendorf, New York City (Preben Jensen, of counsel), for respondents.

Before THOMPSON, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for rescission of a settlement agreement in which the late defendant Phillip E. Prassas counterclaimed for enforcement of that agreement and other relief, RTS Construction Corp. and George E. Prassas, as administrator of the estate of the late Phillip E. Prassas, appeal from an order of the Supreme Court, Queens County (Dunkin, J.), dated February 6, 1990, which denied the administrator's motion to be substituted as a party defendant and granted the plaintiffs' cross motion to dismiss the defendants' counterclaims with prejudice.

ORDERED that the order is affirmed, without costs or disbursements.

In light of the five-year period of inactivity in this case between the appointment of the appellant George E. Prassas as the administrator of his late brother's estate and the instant motion seeking his substitution in this action, the insufficiency of the excuse proffered for the delay, the absence of any affidavit of merit, and the fact that the plaintiffs no longer wish to prosecute their action against the defendants, we find that the court did not improvidently exercise its discretion in denying the motion for substitution and granting the plaintiffs' cross motion...