Reed v. Grossi

• Decision Date: 10 February 2009
• Docket Number: 2007-08958.
• Citation: 873 N.Y.S.2d 676,2009 NY Slip Op 01096,59 A.D.3d 509
• Parties: DONALD REED, Plaintiff, v. EUGENE GROSSI et al., Respondents. BEULAH NELSON-SPELLMAN, Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 509

873 N.Y.S.2d 676

2009 NY Slip Op 01096

DONALD REED, Plaintiff, v.EUGENE GROSSI et al., RespondentsBEULAH NELSON-SPELLMAN, NonpartyAppellant.

2007-08958.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 10, 2009.

In an action to recover damages for medical malpractice, Beulah Nelson-Spellman, executor of the estate of Donald Reed, appeals from an order of the Supreme Court, Kings County (Levine, J.), entered August 22, 2007, which denied her motion, in

effect, for leave to substitute herself as a party plaintiff in place of Donald Reed, to amend the caption accordingly, and to vacate the stay of proceedings resulting from the death of Donald Reed and, upon a so-ordered stipulation dated April 21, 2005, granted the defendants' cross motion pursuant to CPLR 3216(a) to dismiss the complaint for failure to prosecute.

Ordered that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, the so-ordered stipulation dated April 21, 2005 is vacated, the motion of Beulah Nelson-Spellman, executor of the estate of Donald Reed, in effect, for leave to substitute herself as a partyplaintiff in place of Donald Reed, to amend the caption accordingly, and to vacate the stay of proceedings resulting from the death of Donald Reed, is granted, the defendants' cross motion pursuant to CPLR 3216(a) to dismiss the complaint for failure to prosecute is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings, including the entry of an order amending the caption accordingly.

On or about October 27, 2000Donald Reed underwent open-heart surgery, performed by the defendantEugene Grossi at the defendant New York University Medical Center, a division of the defendant New York University.On February 13, 2003 Reed commenced the instant action, alleging that he sustained personal injuries and damages as a result of the alleged medical malpractice committed by the defendants.According to the complaint, the defendants negligently left surgical instruments in his person, requiring a second surgery.Issue was joined, and discovery proceeded slowly.

On July 1, 2004 Reed died from unspecified causes.At a compliance conference held on September 14, 2004the Supreme Court was advised of Reed's death, prompting the matter to be stayed and adjourned, pending the appointment of a representative of Reed's estate.While Reed's counsel appeared for compliance conferences on several occasions thereafter, no appointment of a representative of the estate had been effectuated.Notwithstanding the statutory stay of proceedings necessitated by Reed's death (seeCPLR 1015), counsel entered into a stipulation dated April 21, 2005, which was so-ordered by the court, in effect, directing the dismissal of the complaint "without prejudice and [with] leave to renew within 9 months, on consent."

After protracted proceedings, the Surrogate's Court, Kings County, appointed nonparty Beulah Nelson-Spellman as executor of Reed's estate, and issued letters testamentary dated April 30, 2007.Within weeks, Nelson-Spellman moved, in effect, to substitute herself as the partyplaintiff in the action in place of Reed, to amend the caption accordingly, and to vacate the statutory stay resulting from Reed's death, and the defendants cross-moved pursuant to CPLR 3216(a) to dismiss the complaint for failure to prosecute.The Supreme Court denied Nelson-Spellman's motion and granted the defendants' cross motion to dismiss the complaint.We reverse.

CPLR 1021 provides 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, 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.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...